On 20 May 2024, the International Criminal Court (ICC) Prosecutor Karim Khan recommended the issue of arrest warrants against Israel’s Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, as well as three leaders of Hamas: Yahya Sinwar, political leader in Gaza; Mohammed Diab Ibrahim Al- Marsi, military leader in Gaza; and Ismael Haniyeh, the head of Hamas office in Doha. Netanyahu has called Hamas Nazis, and it might upset him to be bracketed with them.
On 24 May, the International Court of Justice (ICJ) gave its verdict. Drawing attention to Israel’s obligations under the 1948 Convention to Prevent and Punish the Crime of Genocide, the Court ordered Israel to:
i. immediately halt its military offensive and any other action in the 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;
ii. open the Rafah crossing for unhindered provision at the scale of urgently needed basic services and humanitarian assistance.
iii. take effective measures to ensure unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide; and
iv. Israel should submit a report within a month from the date of the order. That report will be shared with South Africa.
Reading between the lines, the Court ordered that Israel should be prevented from continuing the war. However, the Court wants to be politically correct by not saying Israel has been and is continuing a genocidal act. The principal reason is that such a verdict will impose obligations on the United States and others party to the Genocide Convention to ‘punish’ Israel. It follows that Washington must stop sending arms to Israel and defending it at the Security Council.
The ICJ is meant to deliver justice without fear or favour. Giving Israel a month to respond shows that the Court does not understand that between 26 January 2024, when it delivered its first verdict, and 24 May 2024, the death toll in Gaza has gone up from 25,700 to 35,800, as per the Ministry of Health in Gaza. These figures, of course, are not accurate. With Israel’s intense military bombing, how can anyone get accurate figures?
Moreover, nobody knows how many thousands are under the debris of bombed residential buildings and refugee camps. In short, we can presume that about 10,000 human beings have been killed by their fellow human beings in the time between the two judgements. Why give a month? Israel should have been ordered to report back in forty-eight hours.
The leaders of Israel and Hamas have been charged with war crimes and crimes against humanity: seven charges against Israel and eight against Hamas.
A war crime is a serious violation of international humanitarian law, including the Geneva Conventions on the conduct of war. The phrase ‘crimes against humanity’ has been used for centuries to include slavery. According to the Rome Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
a. Murder;
b. Extermination;
c. Enslavement;
d. Deportation or forcible transfer of population;
e. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
f. Torture;
g. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity;
h. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, or gender as defined in paragraph 3, or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
i. Enforced disappearance of persons;
j. The crime of apartheid;
k. Other inhumane acts of a similar character intentionally causing great suffering or serious injury to the body or mental or physical health.
The ICC will start pre-trial, which might take weeks or months. The process will begin in a chamber with three judges: Julia Motec (Romania), Reine Alapini-Gansou (Benin) and Nicolas Guillou (France). Karim Khan has claimed he has sufficient evidence to support his recommendation.
The recommendation is likely to be accepted, but we are unsure of the timeline; it could be accepted within a couple of weeks or months. Considering the mounting grim toll and political pressures, we do not know what sense of urgency the chamber will work with. Also, the persons accused need not be summoned.
The United States is not a party to the ICC; Germany, France, and the UK mainly fund it. They were rather taken aback when Karim Khan made his recommendation.
Initially, the Europeans equivocated by saying they ‘respected the independence’ of the ICC. When France signalled that it might have to arrest Netanyahu if he came there if the ICC issued an arrest warrant, the Israeli Foreign Minister Israel Katz rushed to Paris. He returned empty-handed as both Paris and Berlin later declared that they would comply with the ICC judgment. Netanyahu was furious. Tel Aviv asked how Berlin could reconcile its support for Israel’s ‘right to self-defence’ and its stand on the ICC.
On 24 May, the Security Council passed a resolution denouncing Israel’s attack on UN personnel. The Israeli military has killed more than 190 UN staff. Washington did not exercise a veto. The resolution does not mention Israel by name but emphasises the responsibility of all member-states to protect United Nations staff.
Even as the ICJ delivered its judgment, the Israeli military intensified its assault in Gaza, including Rafah. In my assessment, Netanyahu will show his defiance by resorting to an enhanced military operation that is far from complying with the ICJ order. Sadly, he will get support within Israel – and perhaps, also from the United States.
The decisions taken by Israel’s leaders are dangerous and could destabilise the region. Netanyahu’s decisions, taken mainly to keep himself in power, will fuel the rise of antisemitism across the world.
Netanyahu’s decisions, supported by Israel’s right-wing, are making Israel seem like a rogue state. The nations that support Israel are losing all sense of moral authority to talk about a ‘rules-based world order.’
Netanyahu is continuing with his actions primarily because he is convinced Biden can only bark and cannot bite. Those interested in my assessment of US-Israel relations can read this op-ed I wrote in 2023 titled ‘Is Netanyahu Imitating Hitler While Biden Is Sleepwalking?
While Israelis are likely to support their prime minister assailed by the rest of the world, the demand for getting the hostages back now is getting stronger, and any such deal can provoke the far-right to topple the government. If Netanyahu chooses to provoke Iran with repeated attacks, Biden will rush to Israel’s rescue, and a regional conflagration can break out.
The region is on the brink of a catastrophe. Biden has painted himself into a corner. Will he do what he should do as president of the most powerful state in the world to put an end to this horrendous dance of death and prevent an even bigger catastrophe?
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