Tales of hypocrisy: Israeli genocide and the International Criminal Court

The weekend before Christmas, Israel announced the loss of 17 of its army soldiers during a 24-hour period. Avenging its loss on the battlefield, Israeli jets levelled residential neighbourhoods in three refugee camps (Maghaze, Bureij and Nuseirat), killing 250 civilians and injuring dozens more.

In the last 90 days, the massacring of civilians has become a familiar scene in Gaza. Whenever the Israeli army faces significant losses, it resorts to reprisal attacks on easy civilian targets. The Israeli terrorising of civilians serves a dual purpose: firstly, to placate the innate vengeful sentiments within the Israeli public by creating illusive victories, and secondly, to inflict pain and suffering upon innocent Palestinians. Contrary to its claims, Israel intentionally directs its military efforts towards non-combatants as part of its military objectives and not because fighters are supposedly embedded among civilians. How else can it justify dropping 2,000-pound bombs on homes in the middle of the most densely populated refugee camps? For the first time in history, these bunker busters are used in civilian homes. All Israel needs to sanction its war crimes is to claim that people were warned to evacuate days before or there was a high-value target.

Over the last three months, a staggering 22,000 civilians have been killed. This figure doesn’t account for an estimated 7,000 individuals who remain trapped beneath rubble, nearly 5,000 of whom are women and children. Israeli aggression has also led to the displacement of two million or 85 per cent of the population, with many experiencing multiple displacements. Furthermore, according to the Wall Street Journal, more than 300,000 or 70 per cent of the homes and 50 per cent of the buildings in Gaza have been “damaged or destroyed”. Even if Israel ceased its genocidal war immediately, a heartbreaking reality emerges as one and a half million individuals do not have homes to return to.

Hospitals face a dire situation, grappling with destruction, siege and inadequate medical supplies to save the injured. Gemma Connell from the United Nations (UN) humanitarian agency Office for the Coordination of Humanitarian Affairs (OCHA) described to the BBC the chaotic state at Al-Aqsa hospital in central Gaza as “absolute carnage” and the medical facility being “absolutely overloaded”.

READ: Israeli sniper shoots Palestinian girl, Gazans rush to rescue

In response to this human catastrophe, and in a rare move, on 6 December, 2023, UN Secretary-General António Guterres invoked Article 99 of the UN Charter. He characterised the situation in Gaza as: “At a breaking point [and] the situation is simply becoming untenable.” He urgently called upon the Security Council to intervene before the complete breakdown of “the humanitarian support system in Gaza.” Guterres also addressed the loss of over 130 UN employees, highlighting the extreme circumstances by pointing out that some UN staff members: “Take their children to work so they know they will live or die together.”

Notwithstanding the UN chief’s warning, the US veto stood alone to block the collaborative international efforts to put an end to the humanitarian disaster in Gaza. Sadly, the US imperial global hegemony has been transformed into a Zionist tool to shield Israel from accountability across all UN bodies, including the ongoing International Criminal Court (ICC) investigation of Israeli war crimes in Palestine.

Shortly after the State of Palestine became a member of the ICC in January 2015, it formally requested the ICC to investigate Israeli crimes in the 2014 attacks on Gaza and violations of the Geneva Convention in occupied West Bank and East Jerusalem. At that time, the ICC Prosecutor Fatou Bensouda launched the investigation with an assurance to conclude it within “due time” before she qualified her statement, citing challenges such as limited resources and the heavy workload for prosecutors. She later added the impact of the coronavirus pandemic, even though the initial ICC investigation had commenced four years before the onset of the coronavirus.

After five years of thorough investigations, the former prosecutor wrote that she was: “Satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip.” However, in contrast to a previous court case against Sudan, where arrest warrants were issued against specific individuals, Bensouda left the office at the end of her term in 2021 without filing charges against individual Israelis accused of said “war crimes”.

In a recent press conference held in Cairo on 17 November, current ICC Prosecutor Karim A. A. Khan asserted that since taking office in June 2021, he has diligently pursued the investigations initiated by his predecessor. However, mirroring the stance of the former prosecutor, Khan conveyed to his audience that for the past two years, he had been “calling, requesting, pleading for additional resources.”

Notably, the same prosecutor appeared to have had no impediments regarding time and resources when he promptly initiated an investigation on 25 February, 2022, merely one day after the start of the Russia-Ukraine war. By 28 February, Khan announced his intention to launch a comprehensive ICC investigation of Russian war crimes. At the time, the number of reported civilian deaths in Ukraine stood at 379.

The ICC prosecutor commenced an investigation into potential future crimes in Ukraine within 24 hours of the war. Remarkably, his office had all the necessary resources to conclude this investigation and issue arrest warrants against Russian officials one year later. In stark contrast, both Khan and his predecessor at the ICC spent close to ten years and are still unable to finalise an investigation into the ICC-documented past crimes in Palestine.

In the context of the Gaza situation, Khan acknowledged during the Cairo conference that five countries—South Africa, Bangladesh, Bolivia, Comoros and Djibouti—had submitted a referral to investigate potential crimes committed by Israel. Notably, as of 17 November, the number of Palestinians killed stood at 11,500 in Gaza, a figure 30 times higher than the number of dead Ukrainians when Khan began a full ICC investigation against Russia. Moreover, when considering the proportion to the population, the death toll in Gaza was a staggering 482 times higher than that in Ukraine.

Nevertheless, when asked about the five-country referral regarding Israeli crimes, Khan sidestepped a direct response, casually stating that his office was actively investigating: “Crimes committed since June 2014 in Gaza and the West Bank.”

READ: Israel soldier robs comrades in Gaza

It’s noteworthy that before his press conference in Cairo, Khan visited the Palestine-Egypt Rafah border crossing. He had a first-hand view of the thousands of food trucks, medical supplies, water and fuel blocked from entering Gaza. On his front seat, he observed the impact of the Israeli Minister of War Yoav Gallant ordering a complete siege on Gaza: “… no electricity, no food, no fuel, everything is closed.”

Khan witnessed, in real-time, the clear intent to starve a population that was debased by Gallant, who referred to Palestinians as “human animals,” to kosher murder and starvation. By that juncture, Gaza had already endured a five-week starvation siege. Unlike the situation in Ukraine, where the ICC was posed to investigate impending future crimes, in Gaza, the intent seemed to be “deliberately inflicting conditions of life calculated to bring about the group’s physical destruction”—a verbatim phrase the ICC had previously used in charging Sudanese individuals with war crimes.

The ICC Prosecutor would have known of specific intents and actions, not merely speculative crimes. This was further evident by Israeli President Isaac Herzog’s response to reporters five weeks earlier, stating that all people in Gaza were legitimate military targets, emphasising, “It is an entire nation out there that is responsible.”

Khan should have also been aware that just three days before, on 14 November, Israeli Finance Minister Bezalel Smotrich proposed a “voluntary” depopulation of Gaza, a euphemism for transfer. This openly declared intent aligns with charges of “crimes against humanity,” specifically “forcible transfer of population”—language that served as the foundation for the prosecutor’s charges in the war crimes case against Sudanese officials.

Following years of foot-dragging and stonewalling rendering the ICC dysfunctional by singling out Israel as an exception to international law, last week South Africa filed a new case at the UN’s International Court of Justice (ICJ) to investigate the Israeli military campaign in Gaza in accordance with article nine of the Genocide Convention.

In contrast to the ICC’s focus on individual roles in war crimes, the ICJ, also known as the World Court, upholds a higher standard of professional integrity when adjudicating matters concerning state violations of international law. South Africa’s decision to approach the ICJ may stem from its desire for the court to promptly issue a determination on the nature of Israeli crimes in Gaza, akin to the swift ruling in the case of Ukraine in March 2022.

While the ICJ’s adjudication on the permissibility of Israeli war and article nine of the Genocide Convention lacks enforcement mechanisms for states not party to the case before the court, its legal opinion holds peremptory significance for the ICC and the UN Security Council. This is significantly more relevant in the current context following the Israeli assassination of Palestinian leader Saleh Al-Arouri in Beirut and the looming possibility of a wider, full-blown war beyond Gaza. Consequently, a juridical determination by the UN court is critical to overcome the Security Council’s paralysis, put an end to ICC vacillation and Khan’s misuse of administrative pretexts to delay work on his predecessors’ painstaking determination of “war crimes … committed in the West Bank, including East Jerusalem and the Gaza Strip.”

Therefore, South Africa’s filings with the ICJ are particularly important in light of the UN Security Council and ICC’s inaction and double standards. The profound Israeli-centric, US-led hypocrisy makes a mockery of the UN and the international justice system. This is evident in the ICC’s long history of selectively pursuing cases against Western antagonists or individuals from poor nations, while obstructing investigations into crimes committed by Israeli leaders and Western-backed entities.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.