The International Criminal Court is not doing its job
The International Criminal Court (ICC) should intervene only where national legal systems fail – a principle that is known as complementarity. So why has it gone after Bibi Netanyahu, the Prime Minister of a country with a legal system so independent that he is already on trial there? And why, with so much evidence, is no living Palestinian terrorist facing arrest by the ICC in connection with the Hamas-led October 7 attacks on Israel?
Next week a panel of senior parliamentarians led by historian Lord Roberts of Belgravia will publish the 7 October Parliamentary Commission Report. The ICC should pay attention. For the report is expected to offer harrowing insight into the barbaric acts carried out by Hamas.
October 7 was no ordinary terrorist act. The catalogue of crimes included murder, hostage-taking, arson, mutilation and rape – much of it recorded and live-streamed by Hamas. Even corpses were kidnapped.
Israel had been routinely condemned for its blockade of Gaza which critics said was grossly disproportionate. But by 7 October Hamas had amassed vast quantities of advanced weapons and munitions. Far from being disproportionate, the blockade had in fact been far less than adequate.
There is no doubt that Hamas intended to launch a widespread attack against the civilian population in Israel. Under international law, acts of extermination, murder, torture or rape committed as part of such an attack against civilians amount to crimes against humanity.
Under the Genocide Convention, acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group may amount to genocide. That is what Hamas intended – and still intends.
Much is being said about the alleged disproportionality of Israel's response. But proportionality is a much-misunderstood concept.
Belligerents must ensure that in every attack the risk to civilian life or property is not excessive in relation to the military advantage they anticipate. What counts as excessive? It depends on the circumstances.
In the past, grim ratios between combatant and civilian deaths are believed to have been employed by countries, including Western ones. Grim though they might be, the fact that they exist means that those belligerents are seeking to abide by the basic principles of the law of armed conflict: distinguish between civilians and combatants at all times, and never deliberately target the former. But the destruction of civilian life was Hamas's central objective.
Proportionality also defines the measure of what overall a state can do in self-defence. The overall military force must be proportionate to the objective of stopping and repelling the attack and, where that attack was not an isolated occurrence, preventing future ones. With an attack on the scale of 7 October, and an enemy that controls territory and resources and publicly shares its intention to plan more attacks, it can hardly be suggested that Israel's legitimate self-defence objectives have been met.
Imagine if scores of small towns and villages had been destroyed in Britain, with thousands killed and wounded, and hundreds raped, mutilated or taken hostage. And then imagine the enemy sitting a stone's throw away, continuing to launch rockets and planning more.
What would be a proportionate response?
The leaders of Hamas were so bent on the destruction of Jewish life that they orchestrated and executed the biggest pogrom against Jews since the Holocaust.
The ICC should be acting against them, not Netanyahu.
Lord Verdirame KC specialises in public international law
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