The Rages of Equivalence: The ICC Prosecutor, Israel and Hamas
The legal world was abuzz. The diplomatic channels of various countries raged and fizzed. It had been rumoured that Israel’s Prime Minister Benjamin Netanyahu, along with his cabinet colleagues, had been bracing themselves for a stinging intervention from the International Criminal Court, a body they give no credence or respect to.
Then came the words from the Prosecutor of the ICC, Karim A.A. Khan on May 20, announcing that arrest warrants were being sought in the context of the Israel-Hamas War, benignly described as the “Situation in Palestine”, under the Rome Statute. “On the basis of evidence collected and examined by my Office, I have reasonable grounds to believe that Benjamin NETANYAHU, the Prime Minister of Israel, and Yoav GALLANT, the Minister of Defence of Israel, bear criminal responsibility for […] war crimes and crimes against humanity on the territory of the State of Palestine (in the Gaza strip) from at least 8 October 2023.”
Hamas figures responsible for the attacks of October 7 against Israel also feature. They include the essential triumvirate: Hamas chief, Yahya Sinwar, Mohammed Al-Masri, the commander-in-chief of Al-Qassam Brigades, and Ismail Haniyeh, head of the Hamas Political Bureau. All “bear responsibility for […] war crimes and crimes against humanity committed on the territory of Israel and the State of Palestine (on the Gaza Strip) from at least 7 October 2023.”
On Israel’s part, Khan’s office points the accusing finger at such alleged war crimes as starvation, the wilful causing of “great suffering, or serious injury to body or health”, including cruel treatment, wilful killing or murder, the intentional direction of attacks against a civilian population, extermination, persecution and other inhumane acts falling within the Rome Statute “as crimes against humanity.”
The ICC prosecutor’s assessment follows the now increasingly common claim that Israel’s military effort, prosecuted in the cause of self-defence, is not what it claims to be. Far from being paragons of proportionate warfare and humanitarian grace in war, Israel’s army and security forces are part of a program that has seen needless killing and suffering. The crimes against humanity alleged “were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy.”
Khan acknowledges Israel’s innate right and marrow to self-defence. He does not consider it estranged from the objects of international humanitarian law. To divorce them would merely enliven barbarism. The means Israel chose to achieve its military aims in Gaza, “namely, intentionally causing death, starvation, great suffering, and serious body or health of the civilian population – are criminal.”
On the part of Hamas, the prosecutor cites extermination, murder, the taking of hostages, the use of rape and sexual violence, the resort to torture, cruel treatment and “[o]utrages upon personal dignity” as crimes worthy of investigation. Khan finds that the accused individuals “planned and instigated the commission of crimes” on October 7 and had “through their own actions, including visits to hostages shortly after their kidnapping, acknowledged their responsibility for their crimes.”
When law intrudes into the violence of war and conflict, the participants and instigators are rarely satisfied. The matter becomes even more testy when international tribunals feature. Concerns about power, bias, and an inappropriate coupling (or decoupling) of potential culprits abound.
No doubt anticipating the fulminating response, Khan convened a panel of experts in international law to advise him whether his applications for arrest warrants met the threshold requirements of Article 58 of the Rome Statute. It would be hard to dismiss the weighty credentials of a group made up of such figures as Lord Justice Fulford, Judge Theodor Meron and Baroness Helena Kennedy.
None of this mattered in the catatonic rage arising from pairing the warring parties in the same effort. The response reads like a decrypting key to hate and exceptionalism. All wage war justly; all wage war righteously. According to Netanyahu, Israel had suffered a “hit job”, with Khan “creating a false symmetry between the democratically elected leaders of Israel and the terrorist chieftains.” The subtext is clear: democracies, at least those declaring themselves as such, are beyond reproach when fighting designated savages.
On the side of the Middle East’s only nuclear power (officially undeclared) came the erroneous argument that lumping Hamas officials with Israeli cabinet members was tantamount to equivalence. “The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous,” declared US President Joe Biden. “And let me be clear: whatever this prosecutor might imply, there is no equivalence – none – between Israel and Hamas.” Ditto the Austrian Chancellor Karl Nehammer, who thought the pairing “non-comprehensible.”
The prosecutor implied no such thing, focusing on the profile of each of the individuals. The allegations regarding Netanyahu and Gallant, for instance, keenly focus on starvation as a means of waging war, including broader applications of collective punishment against Gaza’s civilian population. For the leaders of Hamas, the interest is on allegations of murder, sexual violence, extermination, torture, hostage taking and incidents of captivity.
The trope of faultless democracy at war against terrorism is a common one. The George W. Bush administration made incessant use of it in justifying illegal renditions and torture during the scandalously named Global War on Terror. Memoranda from the White House and the US Justice Department gave nodding approval to such measures, arguing that “illegal combatants” deserved no human rights protections, notably under the Geneva Conventions.
Unfortunately, many a just cause sprouts from crime, and the protagonists can always claim to be on the right side of history when the world takes notice of a plight. Only at the conclusion of the peace accords can stock be taken, the egregiousness of it all accounted for. Along the way, the law looks increasingly shabby, suffering in sulky silence. These applications for arrest warrants are merely a modest measure to, pardon the pun, arrest that tendency. It is now up to the pre-trial chamber of the ICC to take the next step.
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12 comments
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Douglas Pritchard -
Phil Pryor -
Max Gross -
Canguro -
RomeoCharlie -
Phil Pryor -
Terence Mills -
JulianP -
Clakka -
ajogrady -
Terence Mills -
paul walter
Return to home pageI have always viewed the ‘Hostage taking” with a grain of salt.
If you use the numbers game, its akin to taking prisoners which has been going on forever, and in massive numbers for petty crimes by the Israelis.
Having taken their hostages/prisoners back to Gaza, for use as bargaining chips, the IDF then proceeded to bomb Gaza back to the stone age regardless of their hostages being kept there.
But the whole “hostage” scenario became the reason to commence genocide, so a reduction in their numbers was to be expected.
If you look at the numbers of prisoners taken by Israel in the West Bank, and the increased killing there once the conflict got under way, the have to question the Zionist motivation all along.
And complicity from USA, and its “friends” simply compounds the criminal actions.
Always disturbing, this topic about murder, counter murder, going back over time..; but the history seems clear. Palestine existed over centuries, and contained a mixed population of mostly Islamists, some jews, some christians, some others. With the concept of zionism, over one hundred and forty years ago, claims were made of rights. Despite claims, no legal paper about property, family, identity existed, just the old stories, scripts, books. Chaldeans, Hittites, Sumerians, Assyrians, etc, could not have made claims without laughable rebuffs, for the old days had gone, But, the old testament is with us, incorporated into the bible of those very christians some of whom hated, denied, killed, robbed jews over time, marginalising them, dispersing them; part of the support for zionism among christians (hah) was that emigration from old Europe especially might get rid of an old perceived problem, so that British needs and policies in the Great War were sharply refocussed and Rothschild positioning helped. The utterly untrustworthy British attitude was insular, never consulting properly with the inhabitants of Palestine. The British had a duty and failed. By 1948, Palestine which had existed and was waiting for freedom and resonsibility, had been betrayed, and israel came into “being”, as a product of a policy of usurping by necessary murder, theft, occupation, eviction. British law there had allowed for jewish immigration, so c. 22% of the 1948 population was jewish, but a free Palestine would have seen them marginalised and impotent. No-one would give ground and contemplate a two state solution then and it seems impossible still. Now the Palestinians want their lost land as once did jews as dispersed exiles. It cannot be solved…
Crimes have been going on, mostly unpunished, over time, decades. What can be done to achieve a justice? My consultations with Rawls, etc., offers no line out and forward. A decent USA president would be vital, but.., none exists or can be expected. The kings and popes are useless in diplomacy, the UNO seems knackered and gelded. what can a civilised humanity offer now?
What gives occupation armies any right to “self defence”???
PP, notwithstanding the rhetorical nature of your final question, however, one may well ask where is this civilised humanity of which you speak to be found? Certainly not within the confines of the great or lesser powers – not within North America, nor Britain, not within the European arc with some possible exceptions, or far Eastern Europe or Eurasia, likewise the Middle East – it seems a hopeless situation. African, South American and far Eastern nations seem wise in keeping their interests confined to their own regions.
A great deal of the mess that humanity seems to be struggling with would seem to be a function of countries interfering in the interests of other places; colonial legacies, economic predation and usurpery, exploitation, rationalised bullying and shoulder-barging by bigger stronger nations against weaker poorer ones; all a narrative of the never-ending marauding over millennia.
The use of the word ‘civilised’ has certain lexical implications, where people like Kellyanne Conway ought not be allowed to comment on interpretation; however fine a word such as this that rolls off the tongue, the reality is altogether something else in these blighted times.
I may be mistaken in this, but evidence of civilised humanity would seem to be sparse, thin on the ground.
According to Crikey, Sheridan in the Australian bags out Albanese for not supporting the Israelis and condemning the Hamas leadership. To my mind Albanese has sqibbed it by not agreeing with the genocide allegations against Netanyahu and cronies. He, Dutton a foaming-mouthed fascist, and all of those who defend Israel are out of touch with the broader Australian community on this. This is not anti-semitism, it is a simple fact recognised by most countries in the world that Israel is practising genocide. The ICC by also naming Hamas leaders is promoting a false equivalence. Hamas was, and is, defending itself against an invading force and as such is justified in using any weapons it has. Many of the allegations of rape and the killing of babies have been debunked and some of the alleged dead are now thought to have been at the hands of the IDF itself. Netanyahu knows the writing is on the wall for him, not only as a war criminal but as a civilian criminal facing prosecution at home so has nothing to lose by ordering the IDF to ever more egregious acts of barbarism. Saying Israel is a pariah state is not anti-semitism.
The Canguru is right to bring up what I have always taken for granted, for much of our history has been with the rise and falls of empires, the policies being murder, theft, humiliation, occupation, slavery, utter exploitation. But civilisation remains a good idea, mentioned but not yet mustered and run. How the rotten old superstitions, supremacies, fears and vengefulness ruins things…
The panel advising the ICC were doing their job in reviewing the evidence of war crimes. Whether the three ICC judges now proceed in authorising arrest warrants remains to be seen.
Peter Dutton has made a fool of himself (again) by calling on Albanese to condemn the ICC. Quite appropriately our prime minister has resisted being drawn into commentary on the recommendations made by the expert panel advising the ICC. This panel convened to consider arrest warrants in the case of Israel and Hamas included Adrian B. Fulford, a former judge of the International Criminal Court and retired justice of the Court of Appeal of England and Wales; and Theodor Meron, a Holocaust survivor, former Israeli official, and former judge of the international tribunals on Rwanda and the former Yugoslavia.
The coalition and Murdoch media have screamed that, as Albanese had made comments on the ongoing Assange saga currently before the British High Court he should also be prepared to run commentary on the ICC issue : wrong ! Assange is an Australian citizen, we expect our prime minster to call out the delays and punitive treatment being levelled at Assange. We do not expect that he will automatically back Netanyahu and Biden, the latter even identified the wrong court when he criticised the International Court of Justice and not the International Criminal Court.
This action by the ICC is welcomed and I look forward to seeing arrest warrants issued for the defendants, both Israeli and Hamas and Australia as a signatory member to the ICC should do everything necessary to bring these people before the court.
@Max Gross.
The issue you raise Max is a long settled principle of international law.
However, and so far as Israel is concerned, your question is irrelevant, it simply cannot not arise in the context of Israel’s right to self-defense – which for Israel is, and remains the only relevant consideration.
If any Israel supporter deigned to reply to your question Max, they would simply assert a superior right, that being the right of a State to defend itself. Nothing else is relevant, neither context nor history comes into it, because, as we all know, history started on Oct 7, 2023.
This specious argument of “self-defense” achieved some prominence last year in response to comments made by Francesca Albanese the UN Special Rapporteur on the occupied Palestinian territories in the course of an address to the National Press Club in Canberra on 14 November, 2023. During her speech, she commented that Israel cannot claim the right of ‘self-defence’ under international law because Gaza is a territory which it occupies. She stated further that Israel was committing “war crimes” that must be accounted for.
Ms Albanese’s comments were widely reported at the time, and as you might guess, raised a storm of criticism.
The “self-defense” argument was quoted in the one report of which I kept a copy.
https://www.news.com.au/finance/work/leaders/francesca-albanese-says-israels-right-to-selfdefence-non-existent-and-is-committing-war-crimes/news-story/99514e7f7928ec92fd68e9a470a5cf27
In this report there are two aspects to the “self-defense” assertion, one given by the Israeli ambassador the previous month and the other in direct response the Ms Albanese’s comments:
“Last month, Israel’s ambassador to Australia, Amir Maimon, told the National Press Club that his country was remaining compliant with international law in its ongoing war with Hamas…
…Mr Maimon said at the time Israelis were “the victims, not the aggressors”…
…“We were attacked. Our people were slaughtered. We did not ask for this war,” he said.
…“We are the victims and it is important to remember it while expressing your concerns about the humanitarian situation, about the Palestinians and civilian casualties.”
The other aspect is described thus:
…”Executive council of Australian Jewry co-chief executive Peter Wertheim in response said it “beggars belief” that a high UN official would “seek to deny Israel, or any other member state of the UN, its inherent right to defend itself and its people against armed attacks of the savagery and scale of those carried out by Hamas on October 7”…
…“Did Ms Albanese expect Israel to simply sit back and allow Hamas to continue its murderous rampage in Israel unimpeded, or to return to Gaza and regroup for repeat attacks, as its leaders have openly threatened?” he said…
…“Both the UN Charter and customary international law clearly affirm the inherent right of a State to use force in response to an armed attack, whether that attack emanates from another State or a terrorist organisation like Hamas…
…“Ms Albanese’s assertions to the contrary are the lowest kind of legal sophistry.
…“Her bizarre claim that Israelis have no right to defend themselves is as spurious as the array of legal epithets she habitually directs at Israel without even the pretence of an impartial testing of the facts.”
So…….. Max, you can ask the question, but that’s the answer you’ll get.
In the entire history of the ‘west’s’ aspirations and interference in the Levant and the Fertile Crescent, the lies and deceptions have flowed non-stop, all based on racist notions of civilization, and a conquest for commercial and strategic control of the region. Other than the horrendous continuum by the Roman Christians, the most egregious liars, deceivers and manipulators have been the British, French, Russians and Americans, including in the German ‘exterminations’ (they had all done it before). For all of them to hold out that they are ‘democratic’ and ‘civilized’ is a nonsense based on arcane bullshit to conceal thievery, especially of land, and for them to hold out that they are the arbiters of what is civilized remains without any proof whatsoever.
As the industrial revolution gained pace and the globe became readily accessible, the last 140 years of mobile ballistic wars saw battles turned to not just land, but more importantly to resources, and the guile by mid 20thC turned to desperation. The mock apologia by the west to the Jews joined with the wiles of the Jewish response set in place indelibly the western suzerain and outpost of Israel at great cost to the Arabs in Palestine extant.
The continuing discovery of vast reserves of oil on Arab lands has only increased the treachery of the ‘west’. Its determination for control and capture of resources along with its waste and exceptionalism has seen disenfranchised aspirants from across the world flood across its borders, exposing and crippling its politics of greed via capitalism run amok. Its ability to distinguish its intent rapidly deteriorated, and the Palestineans remained captured
It is no irony where tensions lay, that the following (amongst others) have either not signed or not ratified the Rome Statute; USA, Russia, Ukraine, Israel, Egypt, Sudan, Iraq, Iran, Turkey and China, and along with the farce of the construction of the UNSC and its rotating vetos, it is clear the operation of the UN is under intense attack by so-called ‘civilized’ countries especially now USA and Israel.
The trite lip-service to ‘civilization’ in the Israel / Palestine and other matters of democracy by Netanyahu, Biden, Sunak, Scholz, Macron and Putin do not stand up to any scrutiny. They all appear to operate via coercion increasing as they face imminent collapse. They are not passing the pub test of fairness, but rather often seen as murderous, and approaching totalitarianism.
The last time there seemed to be any sign of civilized fairness in the Israel / Palestine matters was in the days of Rabin and Peres.
It seems we are at a juncture of detachment from colonialism and expansionist militarized capitalism, but no-one seems to know how to do it without resort to protectionism and authoritarianism, or per se the Trump Project 2025 totalitarianism. None of it is being helped by ill-informed individualism, and the bling-based no-holds-barred social media that fails to promote properly informed respectful debate.
The common people ate bound by common decency that is interwoven throughout common law that is he foundation of a civilised society. The legacy media and their complicit and spineless politicians support of the rogue genocidal state of Israel’s are trashing civilised society. These conniving cowards have made “international rules based order” and “international law” an irrelevant concept in world order.
Then there are the fence sitters.If you are neutral in situations of injustice, you have shamefully chosen the side of the cruel and unjust oppressor.” Archbishop Desmond Tutu
All those traitorous bought and paid for by AIPAC spineless Western politicians show no regard for “international rules based order”. GenocideJoe’s condemnation and repudiation of the ICC has trashed common decency while trashing any semblance of US moral high ground.
The question for leaders of developing countries must be how many Palestinian babies and children have to be slaughtered before Joe Biden and Western leaders discovers their Christian values and moral compasses? Western hegemony let alone its actual relevance is what is on trial. Zionist Israel and the USA’s support for genocide, undermining of the United Nations and the trashing of the authority of the International Criminal Court have unwittingly created a new world order.
‘Norway, Ireland and Spain are formally recognising Palestine as a state, their leaders said in coordinated announcements on Wednesday.’
“There cannot be peace in the Middle East if there is no recognition,” Norwegian Prime Minister Jonas Gahr Støre said.
Looks as though Netanyahu has overplayed his hand !
Biden is a senile liar and th e Israeli so called leadership are mad people.