News this weekend that the Chief Prosecutor of the ICC (International Criminal Court) Karim Khan is seeking war crimes arrest warrants for both Hamas's and Israel's leaders. The crimes alleged against Hamas's leaders (specifically Sinwar, Deif, and Haniyeh) involve things like extermination as a crime against humanity, taking hostages as a war crime, rape and other acts of sexual violence as crimes against humanity, torture as a crime against humanity, among other allegations.
The crimes alleged against Israeli leaders (Netanyahu and Gallant) involve things like starvation of civilians as a method of warfare, willfully causing great suffering, or serious injury to body or health, or cruel treatment as a war crime, willful killing, or murder as a war crime, intentionally directing attacks against a civilian population as a war crime, extermination and/or murder including in the context of deaths caused by starvation, as a crime against humanity, persecution as a crime against humanity and other inhumane acts as crimes against humanity.
On the face of it, making any equivalence - even if it's just on the basis of the fact that the application for warrants mentions two parties, giving the appearance of 'both side-ism' - between the leaders of a terrorist organization that attacked a country, and the response of that country while defending itself, is outrageous, (or in President Biden's word, scandalous). In an effort to appear 'balanced' the move ironically has the effect of looking political. But I'm always skeptical of my first reaction. I wanted to know more.
I read the Official Statement about the warrant applications, and watched a TV interview with Chief Prosecutor Kahn this weekend. When asked about the appearance of moral equivalence between the leaders of a terrorist organization and the duly-elected office holders of a democratic nation, he answered as follows (I paraphrase): We do not make such distinctions, because our job is to seek justice according to international humanitarian law by considering only the interests of the victims. Then he went on to name the esteemed members of the panel that advised him in making the charge recommendation (highlighting the Jewish members, lest there be accusations of anti-Semitism), which didn't actually support the substance of his case in my view. I was left wondering if his statement about 'only the interest of victims' was genuine, and assuming it was, the process of identifying the 'victimizers'.
The framing of any conflict determines everything that follows in terms of political, legal and moral implications. The Statement issued by the ICC Chief Prosecutor reads: "My Office also has jurisdiction over crimes committed by nationals of States Parties and by the nationals of non-States Parties on the territory of a State Party." Teasing that out, a conflict between 'nationals of State Parties' means two countries at war. Are there two countries at war in Gaza? Clearly no. Crimes committed by 'nationals of non-State Parties on the territory of a State-Party'. That sounds like acts of terrorism like Hamas's (the non-State Party) attack on Israel (a State-Party). So far so good. So where does Israel's retaliation in self-defense fit? In the legal lingo of the Statute that would be the actions of nationals of a State-Party on the territory of a non-State-Party. On the face of it, they're not covered. The ICC gets around this little problem by considering this case an armed international conflict, namely between "Israel and Palestine", even calling it "the State of Palestine." Khan writes, "I decided that the Court can exercise its criminal jurisdiction in the Situation in the State of Palestine..."
Further on in the ICC Statement you read this: "My Office submits that the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas (together with other Palestinian Armed Groups) running in parallel." So, to help with the legal jurisdictional problem we have not one but two conflicts happening simultaneously (or as he says 'in parallel'), a war between nations (Israel and Palestine), and a war between a state and a terrorist organization. In order to charge crimes the ICC doesn't have the burden of deciding what this conflict actually is, it can be all things to all people, and that way they can charge both parties involved, on different grounds. Nice trick.
Later, the Statement reads: "We submit that the crimes against humanity charged were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy. These crimes, in our assessment, continue to this day." Aside from the startling accusation that Israel, as a matter of State policy, systemically attacked 'the Palestinian civilian population' and not merely as collateral damage during an international war (because maybe this isn't actually a war between States, or maybe it is?), why does the ICC not make any distinction between leaders who are accountable to national rule of law and those who aren't?
Actually it does, and this is the critical point. According to the Rome Statutes, the ICC can only investigate and prosecute international crimes in situations where states are "unable" or "unwilling" to do so themselves.
The bottom line is that the charges are not just misleading by their implied moral equivalence, and legal schizophrenia by operating with one definition of the conflict that has Palestine (incorrectly) defined as a State when that suits charges against Israel, and another definition that (correctly) suits charges against Hamas. In terms of the ICC's own criteria they have every reason to investigate and charge Hamas, and none at all for investigating and charging Israel. There is no question that Hamas is ‘incapable’ of investigating itself since it has no national judicial infrastructure to do so. And Hamas is obviously ‘unwilling’ to investigate itself since every act of savagery they commit is celebrated as a victory. But the bad-faith bias against Israel extends to the fact that, in the middle of this ongoing war, the ICC is presuming that Israel is also either unable or unwilling to investigate its own actions. Israel is obviously capable since it possesses a national judicial infrastucture and rule of law process to do so. Furthermore, the fact that Israel has already publicly admitted operational mistakes, and has initiated multiple investigations into their own actions, indicates its willingness. But this does not seem good enough for the ICC.
Having the victims in mind when charging crimes sounds good. But the proof of the pudding is in the eating. The ICC has twisted itself in legal knots in order to find in Israel a 'victimizer' that satisfies some distorted view of equity and fairness. The bias that taints this warrant does a disservice, not just to Israel and the ICC itself, but to the entire effort of defining and applying international humanitarian law.
2 comments:
My preference is just to ignore these clowns. They have no real power, and certainly no legitimacy. If they have an agenda, as they obviously do, God bless them (and as Tevye says: "and keep them far away from us".)
It's like Bella Hadid apparently wearing a dress that looks like a keffiyah to the Cannes Festival. Who cares? As much as I would like to see what that actually looks like, I refuse to waste my time looking for a picture of her/it on social media, and I refuse to give her the satisfaction of getting another "hit". I prefer to spend my time on your blog! I also have an obvious bias ... I admit it.
It's hard to ignore. You're certainly right about the court having no real power, but there is a certain symbolic legitimacy there, and it most definitely has an impact in the court of public opinion. As someone who studied international politics and spent a year in Geneva, I have always held a lot of hope for the UN system and international cooperation in general. And although it's far from perfect, I continue to believe that the UN system should be credited for a lot of the advancement of humanity in terms of the peace and security we have enjoyed in our lifetime. No doubt their treatment of Israel is a stain on their record. But I won't throw the baby out with the bath water. The Universal Declaration of Human Rights was a watershed moment in human history and the system of international justice is a work in progress. The treatment of Israel has consistently shown how far we are from reaching the goals of true international justice.
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