If the United States and Israel wish to go beyond Victor's justice, they ought to ensure that the same laws apply to them and that the same repercussions follow from their leaders' violations of international humanitarian law (IHL) as would occur if a weaker country, like Cuba or Vietnam, violated IHL.
In his book “Animal Farm,” George Orwell famously remarked, “All animals are equal, but some are more equal than others.”
It was used as a metaphor to criticize the Russian Revolution of 1917, highlighting the concavity of the communists’ claims of equality in a socialist setup, which remained an unrealized dream. This allegory perfectly describes the international dynamics and state hierarchies in the 21st century.
The United Nations (UN) is based on the principle of “Sovereign equality,” where all its members enjoy equal rights and duties and are equally a part of the international community, notwithstanding economic, social, political, or other nature differences.
VIOLATIONS OF IHL BY THE ISRAELI DEFENCE FORCES (IDF)
A report titled ‘You feel like you are a subhuman’: Israel’s genocide against Palestinians in Gaza was released by Amnesty International, where it found sufficient basis to conclude that Israel has committed and is continuing to commit genocide against Palestinians in the occupied Gaza Strip. The report demonstrates that the IDF has carried out acts that are in apparent contravention of the Genocide Convention of 1948. It states that the brutal military offensive of IDF into the Gaza Strip has led to indiscriminate killings of more than 42,000 Palestinians, out of which 13,000 were children.
IHL, rooted in the Geneva Conventions of 1949 and customary international law, is designed to safeguard civilians and restrict weaponry and combat tactics. The provisions of the Geneva Convention are binding on all states in conflict, prohibiting indiscriminate attacks targeting civilians and collective punishment.
The prolonged blockade of the Gaza Strip and recurrent airstrikes on it by the IDF have led to high civilian casualties, especially among children. A prominent Human rights organisation, Human Rights Watch, has accused Israel of employing ‘White Phosphorous’, a substance that has significant incendiary effects that can severely burn people and set structures, fields and other civilian objects in the vicinity of fire. Despite the prohibition on the use of white phosphorous bombs under the Convention on Certain Conventional Weapons (CCW), IDF's continuing use of such bombs in civilian areas is a direct contravention of the IHL due to the indiscriminate suffering it causes.
HOW SHALL ACCOUNTABILITY BE FIXED?
A plethora of questions then arise: Are the persons responsible for the atrocities caused to the victims be held liable for their actions? Will they be held accountable for such egregious abuses of human rights? Who shall hold them accountable? Should the Israeli military tribunals or criminal courts be tasked with prosecuting these offending commanders?
At this juncture, it would be edifying to remember the Principle propounded in the “R vs Sussex Justices”, where Lord Hewart CJ remarked that ‘justice should not only be done but should manifestly and undoubtedly be seen to be done’. Thus, even in a hypothetical situation where the judges sitting in the Israeli courts and tribunals are impartial, it would not, in any manner, increase the faith of the victim in the justice system, and doubts about the impartiality of the proceedings would cloud him.
Thus, for justice to be achieved, the trials must be conducted by an independent agency that is impersonal and unbiased in the conflict.
A BRIEF HISTORY OF WAR TRIALS AT NUREMBERG
We must gaze at the past to set the motion for the trial of war crimes committed by Israel. It is a well-established principle that criminals must be brought to justice, and the state’s sovereignty cannot protect its leadership from being held accountable for their actions. The principle was further ingrained in Criminal Jurisprudence when the Allies, spearheaded by the US, instituted the ‘Nuremberg Tribunal’ to prosecute the Nazi leaders.
The Nuremberg trial ruled that “In the name of sovereignty, had the trial been left to the German courts, it was inevitable that those guilty of the worst war crimes would have been acquitted”.
Similarly, the international community found it necessary to establish a tribunal to prosecute those responsible for violating the IHL and committing War crimes in Rwanda and Yugoslavia. The tribunals were set up to sentence the perpetrators for violating IHL and bring victims to Justice without fear or favour.
FORMATION OF THE INTERNATIONAL CRIMINAL COURT (ICC)
Constituting Ad Hoc tribunals to try people for war crimes had its flaws. Various scholars argued that it was representative of the ‘Victor’s Justice’ mindset, which refers to a distorted application of justice to the defeated party by the victorious party after an armed conflict.
For instance, it wasn’t only the Axis powers that committed war crimes in WWII; the Allied powers had their fair share, too, which went scot-free in the Nuremberg trials. Subsequent tribunals witnessed similar patterns, where the victor or the influential party constituted a proxy tribunal and acquitted itself of all the IHL violations and war crimes.
Thus, the international community felt a need to set up a permanent International Criminal Court (ICC), which would try criminals from both sides of the war and resolve grievances without taking anyone’s side.
By its inception and method of functioning, such a court would have more legitimacy than local courts that national politics may influence. By its very nature, the ICC conforms to the principle that “Justice must not only be done but seen to have been done”. Thus, the ICC was established in 2002 after ratification by 127 countries.
ICC AND the International court of justice (ICJ) PUTS ISRAEL ON NOTICE
In late May 2024, Karim Khan, the prosecutor of the ICC, issued an arrest warrant against the Israel and Hamas leaders. The decision of the ICC was quickly followed by an order from the ICJ, which held that Israel must not advance any further into Rafah and must refrain from activities that could harm civilians.
The verdict by the ICJ insinuated a possible genocide in the Gaza Strip without explicitly mentioning the word. However, it directly quoted the ‘Genocide Convention’, stating that “Israel must halt its military offensive and any other action in Rafah governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part”.
US AND ISRAEL’S STAND ON THE RULING
It is most natural to expect that no country should have any hesitations about subjecting its leaders to the ICC if war crimes have been alleged against them.
As international tribunals tried the Rwandan, Yugoslavian, and Nazi leaders to advance the cause of justice, so should British, Indian, and American leaders be tried by an international forum when charges of war crimes and crimes against humanity are levelled against them, allowing for a fair trial.
However, it comes as a surprise that neither Israel nor the USA are member states of the ICC, thus protecting themselves from any form of criminal liability that could arise in pursuance of committing war crimes, as demonstrated by the IDF in the Gaza Strip.
Add to this that when the Palestinian Authority (PA) entered the ICC in 2015, the US actively opposed the move and also considered a Bill in the US Congress that sought to impose sanctions on the PA for becoming a party to the ICC. The US threatened to penalise the PA for being a part of the ICC, holding that any charge of war crime against Israeli commanders should be tried only in Israeli courts and tribunals as they have been self-certified to be the champion of human rights.
CONCLUSION
Procedural international law boasts of the “Equal sovereignty principle” of the states as the basis of all international relations, but it fails to substantiate these claims in times of adversity. Nations with muscle and monetary power are more often capable of committing war crimes, remaining free, and avoiding criminal liability.
If the domestic courts of Germany couldn’t be entrusted with a fair trial of the Nazi leadership, then why should the Israeli courts be trusted with trying the IDF commanders.
If the United States and Israel wish to go beyond Victor's justice, they ought to ensure that the same laws apply to them and that the same repercussions follow from their leaders' violations of international humanitarian law (IHL) as would occur if a weaker country, like Cuba or Vietnam, violated IHL.
As long as these nations do not freely ratify the Rome Statute and become parties to the ICC, expanding the court's jurisdiction to themselves, the principle of equal sovereignty for States will remain a mere concept with no real relevance or application.