The wheels of justice move slowly but they appear to be quickly catching up with Israel, leading to hopes of justice for Palestinians in Gaza. But the response of Israel’s ally the United States suggests the latter would rather destroy the international legal order it helped create rather than hold Israel to account for war crimes.
This comes as the Prosecutor of the International Criminal Court, Karim Khan QC, announced this week that he would be seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. Warrants were also sought for Hamas leaders Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri and Ismail Haniyeh.
Khan issued a strong statement explaining he had “reasonable grounds” to believe Netanyahu and Gallant had committed war crimes and crimes against humanity, including starvation as a method of warfare, intentional attacks on civilians and overseeing the “extermination and/or murder” of Palestinians in Gaza.
This is not a surprise. Israel has responded to Hamas’ attack on 7 October 2023 by waging a brutal war on Gaza. The Gazan health ministry claims 35,000 people have been killed, the majority being women and children. In fact, the UN has stated that more children have been killed in Gaza in seven months than in all conflicts worldwide in the past four years. The sheer number of children killed led to the Commissioner-General of the UN Relief and Works Agency (or UNRWA) Philippe Lazzarini calling Israel’s actions a “war on children”.
Israel has levelled Gaza through airstrikes and its ground campaign. 50 per cent of Gaza’s buildings, including houses, hospitals, schools, universities and mosques have been destroyed, leaving over a million Palestinians displaced. Israel’s leaders have also been accused of starving the population by withholding the flow of humanitarian aid, food and water, leading to famine-like conditions.
Overseeing the destruction has been Netanyahu and Gallant. Netanyahu was accused of showing a callous disregard for “innocent lives being lost” and has steadfastly refused to accept a ceasefire with Hamas. Gallant is no different, overseeing Israel’s military campaign and calling for a “total siege” of Gaza. There is evidence aplenty of both men supporting the collective punishment of Palestinians.
Netanyahu has labelled Khan’s decision as “outrageous” and a “moral outrage of historic proportions”. In a sign of desperation, the prime minister also accused the lawyer of antisemitism, stating that “Mr. Khan takes his place among the great antisemites in modern times.” Netanyahu’s response is predictable. He has a long history of disrespecting international justice while being afraid of its reach in equal measure.
Rather than Netanyahu, it has been the response of US President Joe Biden that has raised eyebrows.
Biden also called the decision “outrageous” and slammed the court for finding “equivalence” between crimes committed by Hamas and Israel. This was echoed by Secretary of State Antony Blinken, who said he “fundamentally rejects” the move and claimed the court had “no jurisdiction” over the matter.
These claims are baffling to say the least. The request for arrest warrants is based on evidence and supported by international legal experts. To call them outrageous is an insult to the court and the victims of these crimes, whether they be Israeli or Palestinian. Khan was also clear there is no equivalence in the crimes committed by Hamas and Israel and international law says individuals are responsible for the crimes they commit. Finally, Palestine being a state party to the court means the court has jurisdiction over crimes committed in its territory. Either the Biden administration does not understand international law, or it is being deliberately dishonest.
Another problem for Biden is he has publicly commented on ICC matters before.
In March last year the ICC issued arrest warrants for Russian President Vladimir Putin and Commissioner for Childrens Rights Maria Alekseyevna Lvova-Belova for war crimes, including the unlawful transfer of Ukrainian Children, after Russia invaded Ukraine in February 2022.
The response from Biden was the opposite of what we have seen this week. Instead of condemnation, Biden “welcomed” the move and told the media Putin had “clearly committed war crimes” against Ukrainian civilians. This came after Biden accused Russia of “committing genocide” after mass graves were found in Ukraine.
Like Israel, Russia is also not a state party to the ICC, meaning in normal circumstances the court does not have jurisdiction. But – like Palestine – Ukraine granted the court jurisdiction over its territory in 2015 when Russia invaded and annexed Crimea. Biden had no problem with the court’s jurisdiction in Ukraine when it was Putin receiving an arrest warrant.
These are clear double standards, and it is dangerous.
Undermining an international court that investigates and tries humanity’s gravest crimes only emboldens others to act with impunity. If the US will not support the court against Israel, it should not be surprised when bad governments elsewhere decide to target civilians or invade their neighbours. Biden’s unwillingness to apply the law equally makes civilians everywhere less safe.
The US also had a proud history of standing up to states committing crimes against innocent people, including trying the Nazi leadership for the Holocaust in Nuremberg and intervening to stop genocide and ethnic cleansing in Kosovo. Failing to hold Israel accountable for the same crimes undermines that history.
Thankfully, Khan’s statement made it clear to everyone that any attempt to impede, intimidate or influence the court will not be tolerated and those who try will be prosecuted. This came after he warned against intimidating the court earlier this month, widely seen as a swipe at the US and Israel after politicians in both countries publicly pressured his office.
Instead of protecting Israel at all costs, Biden would do well to read Khan’s statement, which stresses the importance of the law applying to everyone and that not doing so will “create the conditions for its collapse”. It is a warning Biden should heed.
Biden therefore needs to decide what is more important, Israel or international law, justice and protecting civilians.
His legacy, the future of international law and the lives of Palestinians depends on it.
