The ICC enables evasion of genocide indictments for Israel leaders

Only those in power are still unable to articulate the word ‘genocide’, and not for lack of knowledge. The illusion of acting without angering Israel too much has taken root so much that the International Criminal Court’s application for arrest warrants also fails to specifically mention genocide.

According to a statement by the ICC, applications for international arrest warrants will be sought for Hamas’s Yahya Sinwar, Mohammed Deif and Ismail Haniyeh, and Israel’s Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. Surprisingly, or perhaps not, given the prevailing bias in favour of Israel, Hamas members are charged with eight crimes, while Israel is charged with seven. The main difference lies in the extermination and murder crimes – for Hamas, these have been treated as different crimes. Israel, being so imbued with impunity, has this crime listed as “extermination and/ or murder”. Why is the language of possibility again used in Israel’s context and favour? And why is the ICC enabling Israeli leaders to evade accusations of genocide by not listing genocide among their list of crimes?

According to Article 7 of the ICC’s Rome Statute, extermination is one of the acts listed under crimes against humanity. The Genocide Convention, on the other hand, stipulates “acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group” and lists five possible ways of achieving this, all of which Israel has accomplished. Not just now, but since the Nakba. However, just as in the case of Hamas leaders, Israeli leaders are accused of war crimes, not genocide.

OPINION: West divided over ICC arrest warrants for Netanyahu, Gallant

US President, Joe Biden, issued a brief statement rejecting the ICC application for arrest warrants, calling the action outrageous. “Whatever this Prosecutor might imply, there is no equivalence – none – between Israel and Hamas. We will always stand with Israel against threats to its security.”

Biden got one thing right, although he obviously did not consider the valid interpretation of his statement – there is no equivalence between Israel and Hamas. Israel is a military power, a settler-colonial entity, committing genocide openly with complete impunity and aided by the international community. Hamas is a Resistance Movement and its existence is a direct result of Israel’s colonial presence in Palestine. As a Resistance Movement, it enjoys the legitimate right to anti-colonial struggle. There is no equivalence, certainly. And the ICC’s applications for arrest warrants should have made that clarification by explicitly noting Israel’s genocidal actions.

The ICC did not attempt equivalence. But it has considerably downplayed Israel’s crimes in Gaza. For example, besides not mentioning genocide, despite evidence that was even available to anyone watching the news, torture is not listed among the war crimes Israel has been accused of. On the other hand, claims of rape and sexual violence, which have been disputed even by Israel physicians, have been included in Hamas’s list of alleged war crimes.

As far as painting a picture of horror through crimes against humanity, the ICC has done well. It conveniently left out genocide, not as a way to bring equivalence between Israel and Hamas. Hamas does not have the capacity to commit genocide as Israel does, and decolonisation is not equivalent to genocide. However, keeping silent over genocide means that even at the ICC, at least so far, Israel’s narrative still dominates diplomacy and any chances of persecution.

OPINION: The rages of equivalence: the ICC Prosecutor, Israel and Hamas

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