Lawfare against Israel

KARIM KHAN, PROSECUTOR of the International Criminal Court (ICC) at The Hague, has rekindled what Benjamin Netanyahu’s most ardent loyalists would have given up on months ago—any hope of the Israeli prime minister’s political survival. But in drawing an equivalence between Hamas terrorists and the State of Israel by seeking arrest warrants for Netanyahu and Israeli Defence Minister Yoav Gallant along with the same for Yahya Sinwar (Hamas’ Gaza chief), Ismail Haniyeh (Hamas’ political chief) and Mohammed Deif (Hamas’ ‘military’ chief), the British lawyer has not only galvanised Israeli public and political support behind Netanyahu but also underscored every reason ever cited by any party that has had occasion to question the legitimacy, fairness and modus operandi of the ICC.

The first question is, of course, of jurisdiction. An individual can be prosecuted only when s/he has committed a crime within the court’s territorial jurisdiction or is a citizen of a state in its jurisdiction. Israel was a signatory to the Rome Statute of 1998 which had established the ICC but, like the US and Rus­sia, it had declared long ago that it would not ratify the treaty. Therefore, Israel is not a party to the ICC, like China and India which never signed the treaty. The Palestinians, on the other hand, acceded to the Rome Statute in 2015.

The ICC’s jurisdiction to prosecute is established when a state party approaches the court, a case is referred to it by the UN Security Council (UNSC), or a prosecutor initiates an investigation. The ICC, unlike the International Court of Justice which deals with disputes between states, is the only international court that can prosecute individuals. But where its jurisdiction doesn’t extend because the individual in question is a na­tional of a state outside the bounds of the court, that constraint can be over­come when the case comes to the ICC via the UNSC. Where Netanyahu and Gallant are concerned, that is clearly not the case. Thus, the spotlight has shifted to the prosecutor and the team of legal experts who advised him.

The case against Hamas came to the court after families of Israeli victims and hostages of the attack of October 7, 2023 approached it on October 31. The first instance of a complaint against Israel was from Reporters Without Borders after eight Palestinian journalists were killed under Israeli fire. Khan has brought charges of murder, torture and rape, extermi­nation and hostage-taking, classified as crimes against humanity and war crimes, against Hamas. The case against the Hamas leaders is tight because of evidence of both fact and intent. By that same logic, the case against Netanyahu and Gallant is weak because, while the suffering and devastation in Gaza because of Israeli military action are facts, it is difficult to prove intent. And therein, the charges made by the ICC prosecutor become doubly problematic: starving Gazans, wilful murder, premediated attacks on food queues, and obstruction of aid delivery. These are allegations, not evidence of motive and premeditation.

There’s another fundamental problem with the way Khan has gone about things. Israel is a democracy; in fact, the Middle East’s only genuine one. It has institutions which function, it has courts and prosecutors who investigate—they had been inves­tigating Netanyahu for corruption for a long time—it has civil society and political parties which never stop giving those in public office a hard time, as seen with both the protests against Netanyahu’s judicial reforms and the aftermath of October 7. Another condition for the ICC taking matters into its hands is when the institutions of the state in question have demonstra­bly failed in their duty and are incapable of investigating alleged crimes. Khan doesn’t seem to have taken this condition into account and has given Israel no time to conduct its own investigations. He should have at least asked Israel to probe his charges.

The case against the Hamas leaders for the October 7 attack is tight because of evidence of both fact and intent. The case against Netanyahu and Yoav Gallant is weak because, while the suffering and devastation in Gaza are facts, it is difficult to prove intent

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While the Biden administration in the US has criticised the equivalence between Hamas and Israel, House Republicans wasted no time in intro­ducing legislation seeking to impose sanctions on the ICC prosecutor and his team. Congresswoman Elise Stefanik and Congressman Chip Roy have introduced the Illegitimate Court Counteraction Act “to sanction International Criminal Court (ICC) officials who investigate or prosecute the United States and its allies, including Israel who does not recognize the ICC’s authority.” Of course, the ICC’s arrest warrants are no more than symbolic as it has few resources to bring the accused to The Hague. It didn’t work with Vladimir Putin, whose case could at least be pursued by the ICC despite Rus­sia’s absence because the alleged crimes were committed in Ukraine which is a member of the court. That logic might not work with Gaza as the hitherto Hamas-controlled territory and the Palestinian Authority’s West Bank, which technically acceded to the Rome Statute, are not one and the same.

Nevertheless, American disagreements with the ICC date back to the George W Bush administration when the American Service-Members’ Protection Act, popularly known as the ‘Hague Invasion Act’, came into force to protect American service personnel from the jurisdiction of the ICC and its tribunals. The Trump administration went further with the threat of financial sanctions and prosecution of ICC officials as well as imposing visa bans on them when then- ICC Prosecutor Fatou Bensouda had sought an investigation into alleged human rights abuses by US soldiers and the CIA in Afghanistan. Although the Biden administration has been friendlier towards the court and reversed most of the Trump decisions, it has had no choice but to protest Khan’s actions.

There’s an irony in all of this which has been largely over­looked—Khan is the same ICC prosecutor who, while resum­ing the probe into crimes committed by the Taliban and the Islamic State in Afghanistan, had abandoned the investiga­tion into the alleged crimes of international forces, including US soldiers and the CIA, in Afghanistan extending all the way to the use of so-called black sites in eastern Europe.

Thus, it’s not without reason attention is being paid to Khan and the ‘experts’ who advised him vis-à-vis Israel and Hamas. Writing in theTimes, London, Melanie Phillips observed, “Defensively, Khan says he has consulted an ‘impartial’ panel. Yet it is stuffed with radical ‘hu­man rights’ lawyers who are no friends of Israel. This ‘impar­tial’ panel is actually a hanging jury from the Salem school of law: verdict first, evidence nowhere.” While her opinion that “Khan’s preposterous move is part of the agenda for Israel’s destruction through a pincer movement of genocidal terror, brainwashed street insurrection and ‘human rights’ lawfare” might sound alarmist, she is right in calling out the profes­sional (more ignorant of history the younger they are) human rights agitators’ lawfare against Israel as a fundamental reason for the increased attacks on Jews across the world.

Holocaust historian Omer Bartov wrote in the New York Times: “As a historian of genocide, I believe that there is no proof that genocide is currently taking place in Gaza, although it is very likely that war crimes, and even crimes against humanity, are happening.” Khan, to be fair, has not accused the Israeli leadership of genocide literally, a word eas­ily and lazily being deployed by commentators everywhere. There’s a definitional issue with that. Genocide can only be used for actions undertaken with the “intent to destroy” ei­ther in “whole or in part, a national, ethnic, racial, or religious group.” That was what the Nazis did to European Jewry, what Turkey allegedly did to the Armenians, what was attempted in the Yugoslav civil war. And what Hamas and its patrons and allies still intend to do to Israelis and world Jewry.

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Sudeep Paul

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