War in Gaza: Western objections to ICC warrants are unfounded

As Israel’s massacre of Palestinian civilians continues, the court clearly has jurisdiction to intervene.

International Criminal Court (ICC) prosecutor Karim Khan has finally issued arrest warrants over the war in Gaza, a move that had been talked about for weeks.

On the Hamas side, Gaza leader Yahya Sinwar, Qassam Brigades commander Mohammed Deif and political bureau chief Ismail Haniyeh are charged with eight counts of war crimes and crimes against humanity. On the Israeli side, Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant are accused of seven counts.

Leaving aside the different words used in reaction to the prosecutor’s decision by Israel and Hamas, and their supporters, three main objections were raised.

These include the alleged moral equivalence between Hamas and Israeli leaders established by the warrants; a dispute over the court’s jurisdiction in the matter; and the principle of complementarity, according to which a State has the right to investigate crimes before the ICC intervenes.

The first objection is of a political nature and the other two are of a legal nature.

A detailed rebuttal to the warrants issued by US Secretary of State Antony Blinken outlines all three objections. He cites the “shameful” equivalence established between Hamas, considered a terrorist organization in many Western countries, and the democratic government of Israel.

In retrospect, it is worth asking whether the ICC prosecutor could have avoided a political headache by issuing two separate indictments, especially given the differences in the charges attributed to Hamas and Israeli leaders.

Regardless, the accusation that he established moral equivalence is ridiculous.

Principle of proportionality

The US and other supporters of Israel are invoking a kind of extenuating circumstance, since Israel is a democracy that exercises its “right to self-defense” in Gaza. This does not address Israel’s obligations as an occupying power in the Palestinian territories.

Democracies must exercise their right to self-defense in accordance with international law and the principle of proportionality. In Gaza, more than 35,000 Palestinians have been killed in the last seven months, in retaliation for the murder of around 1,200 Israelis on October 7; this is anything but proportional.

The international community can expect indiscriminate killings by a group like Hamas, but not by a democracy like Israel. The latter adheres to higher moral standards, which have been difficult to maintain as we have seen the Israeli army bomb hospitals, schools and UN facilities, while systematically targeting civilians, aid workers and journalists.

Ultimately, moral equivalence was not created by the ICC prosecutor’s orders, but by the outrageous behavior of the Israeli army on the ground.

Blinken also raised the jurisdictional issue, because Israel is not a signatory to the ICC’s Rome Statute. Even here, the usual double standards and US hypocrisy are at play, because Washington curiously welcomed and supported the ICC’s indictment of Russian President Vladimir Putin for the war in Ukraine, despite Moscow also not being a signatory to the Rome Statute.

With such a shocking record, would anyone be surprised if the ICC prosecutor decided that the Israeli legal system could not be trusted?

This US position on jurisdiction is unfounded. The ICC has jurisdiction because Palestine in 2015 became a State Party to the Rome Statute, which gives the court jurisdiction when the “conduct in question” was committed on its territory.

To leave no stone unturned and better “protect” his warrants, Khan also convened a panel of experts in international law to evaluate and advise on his decision.

The panel supported the prosecutor’s case, concluding that “the ICC has jurisdiction over crimes committed in the territory of Palestine, including Gaza, since June 13, 2014.” The panel also agreed that the court “has jurisdiction over crimes committed by Palestinian citizens inside or outside the Palestinian territory… [e] about Israeli, Palestinian or other citizens who committed crimes in Gaza or the West Bank.”

The panel specifically noted that the court “has jurisdiction over Palestinian citizens who have committed crimes on the territory of Israel, although Israel is not a State Party to the ICC.”

Court of last instance

The final objection raised against the prosecutor relates to the argument that the ICC is a kind of “court of last resort”, which is precluded by its statute from proceeding in any case unless the relevant government is unable or unwilling. want to investigate.

Blinken thus invoked the principle of complementarity, which would theoretically grant the Israeli legal system a preliminary opportunity to conduct a full investigation into the crimes in Gaza alleged by the prosecutor – and only if Israel showed reluctance to pursue the case could it then become a matter for the TPI.

Perhaps Blinken is oblivious to the dismal track record of Israeli authorities when it comes to investigating crimes committed by the country’s own citizens – military, civilians and settlers – against Palestinians since 1948.

According to B’Tselem, from the Second Intifada of 2000 until 2015, the Israeli NGO “demanded an investigation into 739 cases in which soldiers killed, injured or beat Palestinians, used them as human shields, or damaged Palestinian property… in one In four of these cases (182), no investigation was initiated, in almost half (343), the investigation was closed without further action, and only in very rare cases (25) were charges brought against the implicated soldiers.” About a dozen cases were referred for disciplinary action, while others were still being processed at the time of the 2016 report.

B’Tselem’s sad conclusion was that for Palestinians in the Israeli legal system, the probability of a complaint leading to an indictment is about three percent. It would therefore be reasonable to assume that the conviction rate is close to zero.

One of the most recent major Palestinian bloodsheds before the current war occurred in 2018, when Palestinians held regular peaceful protests along the Gaza fence, demanding an end to the blockade that Israel has imposed since 2007. Thousands of people, including children, women and elderly people, ended up protesting.

In response, Israel mobilized dozens of snipers and turned the area into a horrific shooting range, targeting unarmed people. A total of 223 Palestinians, 46 of them under the age of 18, were killed and around 8,000 were injured. To date, no serious investigation has been carried out by the Israeli authorities.

With such a shocking record, would anyone be surprised if the ICC prosecutor decided that the Israeli legal system could not be trusted and instead moved directly to warrants?

Via Middle East Eye. By Marco Carnelos, a former Italian diplomat. He has been assigned to Somalia, Australia and the United Nations. He served on the foreign policy team of three Italian prime ministers between 1995 and 2011. Most recently, he was coordinator of the Middle East peace process, special envoy for Syria for the Italian government and, until November 2017, Italy’s ambassador to the Iraq.