A Misplaced Purity: Democracies and Crimes Against International Law
The application for arrest warrants by the Prosecutor of the International Criminal Court, Karim A.A. Khan in the Israel-Hamas War gives us a chance to revisit a recurring theme in the commission of crimes in international humanitarian law. Certain states, so this logic goes, either commit no crimes, or, if they do, have good reasons for doing so, be they self-defence against a monstrous enemy, or as part of a broader civilisational mission.
In this context, the application for warrants regarding Israeli Prime Minister Benjamin Netanyahu and his Defence Minister, Yoav Gallant, merits particular interest. Those regarding the Hamas trio of its leader Yahya Sinwar, Mohammed Al-Masri, the commander-in-chief of Al-Qassam Brigades, and the organisation’s political bureau head Ismail Haniyeh, would have left most Western governments untroubled.
From Khan’s perspective, the warrants for Netanyahu and Gallant will focus on policies of starvation, the intentional causing of “great suffering, or serious injury to body or health”, including cruel treatment, wilful killing or murder, intentional attacks on the Palestinian population, including 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 in the aftermath of the October 7 attacks by Hamas, 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.”
The reaction from the Israeli side was always expected. Netanyahu accused the prosecutor of “creating a false symmetry between the democratically elected leaders of Israel and the terrorist chieftains.” He rejected “with disgust the comparison of the prosecutor in The Hague between democratic Israel and the mass murderers of Hamas.”
Israeli President Isaac Herzog also found “any attempt to draw parallels between these atrocious terrorists and a democratically elected government of Israel – working to fulfil its duty to defend and protect its citizens in adherence to the principles of international law […] outrageous and cannot be accepted by anyone.”
Israel’s staunchest ally, sponsor and likewise self-declared democracy (it is, in fact, a republic created by those suspicious of that system of government), was also there to hold the fort against such legal efforts. US President Joe Biden’s statement on the matter was short and brusque: “The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous. And let me be clear: whatever this prosecutor might imply, there is no equivalence – none – between Israel and Hamas.”
The democracy-as-purity theme, one used as a seeming exculpation of all conduct in war, surfaced in the May 21 exchange between Senator James Risch, the top Republican on the Senate Foreign Relations Committee, and US Secretary of State Antony Blinken. Was the secretary, inquired Risch, amenable to supporting legislation to combat the ICC “sticking its nose in the business of countries that have an independent, legitimate, democratic judicial system”? (No consideration was given to the sustained efforts by the Netanyahu government to erode judicial independence in passing legislation to curb the discretion of courts to strike down government decisions.)
The response from Blinken was agreeable to such an aim. There was “no question we have to look at the appropriate steps to take to deal with, again, what is a profoundly wrong-headed decision.” As things stand, a bill is already warming the lawmaking benches with a clear target. Sponsored by Arkansas Republican Senator Tom Cotton, the Illegitimate Court Counteraction Act would obligate the President to block the entry of ICC officials to the US, revoke any current US visas such officials hold, and prohibit any property transactions taking place in the US. To avoid such measures, the court must cease all cases against “protected persons of the United States and its allies.”
The Austrian Chancellor Karl Nehammer similarly saw the prosecutor’s efforts as a pairing of incongruous parties. “The fact however that the leader of the terrorist organisation Hamas whose declared goal is the extinction of the State of Israel is being mentioned at the same time as the democratically elected representatives of that very State is non-comprehensible.”
From the outset, such statements do two things. The first is to conjure up a false distinction – that of equivalence – something absent in the prosecutor’s application. The acts alleged are relevant to each specified party and are specific to them. The second is a corollary: that democracies do not break international law and certainly not when it comes to war crimes and crimes against humanity, most notably when committed against a certain type of foe. The more savage the enemy, the greater the latitude in excusing vengeful violence. That remains, essentially, the cornerstone of Israel’s defence argument at the International Court of Justice.
Such arguments echo an old trope. The two administrations of George W. Bush spilled much ink in justifying the torture, enforced disappearance and renditions of terror suspects to third countries during its declared Global War on Terror. Lawyers in both the White House and Justice Department gave their professional blessing, adopting an expansive definition of executive power in defiance of international laws and protections. Such sacred documents as the Geneva Conventions could be defied when facing Islamist terrorism.
Lurking beneath such justifications is the snobbery of exceptionalism, the conceit of power. Civilised liberal democracies, when battling the forces of a named barbarism, are to be treated as special cases in the world of international humanitarian law. The ICC prosecutor begs to differ.
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12 comments
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Terence Mills
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Fred
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Terence Mills
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Teiresias
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OldWomBat
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Phil Pryor
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leefe
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Douglas Pritchard
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Teiresias
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Clakka
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Max Gross
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John C
Return to home pageAdvice to Netanyahu :
The first law of holes : “if you find yourself in a hole, stop digging.”
The second law of holes is commonly known as: “when you stop digging, you are still in a hole.”
…and the final result will be: Netanyahu and co will get away with it and the USA will continue to be a law unto itself.
To be rid of apartheid in South Africa it took two great leaders, Nelson Mandela and F.W. de Klerk, to finally emerge and show the way.
Ultimately that is the only way a two state solution will come about.
To me the last paragraph of this essay says it all.
But what is the power of the ICC – although there are many people in the world who show sympathy for Palestine.
Netanyahu himself has to think about his own future, having not had complete support in his leadership.
There are those who say that nothing will be done.
History is not short in time and Israel is surrounded by people who who look at the list of ICC crimes and recognise them as accurate.
Genocide is a sinful crime and revenge is something that could be contemplated by those affected.
So let us briefly consider the 117 word letter written by Arthur Balfour to Lord Rothschild in November, 2017.
“From that day the present, The Balfour Declaration has been both acclaimed as an act of magnanimity such as is rare in the history of Government, and deplored as the most heinous blunder in the long record of the British Eastern connection.” (p. 11) “Cross Roads to Israel: Christopher Sykes”(NEL Mentor 1965)
There is something wrong with the definition of anti-semitism if it includes prohibition on criticising Israel and holding it to account for its actions. We can criticise Russia without being anti-Russian, we can criticise our own government without being anti-Australian but it seems no one can criticise Israel who, as a result, gets a free pass for whatever they do. Seems plain wrong to me but by its logic I am now anti-sematic.
I fought anti-semitism over time as a teacher particularly, and have friends and acquaintances past and present who are Jewish, but, have been historically aware that the betrayed Palestinians were wronged as much as most Jews see the past for them. The disgusting British incompetence and deliberate racism saw Palestine of 1948, thanks to world indifference, guilt, treachery, double crossing, invaded by Zionists who were ready to murder, thieve, expropriate, take, occupy, eject. Israel as we know it should not exist, There should be a Palestine as the British committed in taking up a mandate after W W 1, with Islamists, some Jews and Christians, some others, the then status quo. Legalisms aside, this is crime. No womder the Irish today support Palestine, remembering British legalised criminality over centuries. Law and legalisms perverted are not right. Can a two state solution be obtained and can it ever work. One doubts it, as ever, for the humans involved are saturated with murderous supremacist utterly rotten superstition. But the old Christian corrupt world was keen to rid itself of a Jewish problem festering for centuries, especially since the times of the odious Innocent II. Superstition depraves and twists. And now, that perverted poltroon, pathetic political plop, Peter Duckwit-Futton, is raving on with old testament utter ignorance on matter of which he knows nothing. Sickening stuff…
…there is no equivalence – none – between Israel and Hamas.
I can’t agree with that.
The leaders of both are more concerned with extermination of perceived enemies (each other) than with the welfare of the people they govern. They are both driven more by ideology than practicality. They are both capable of heinous acts to achieve their aims. The biggest differences are that Israel has more money and technology to achieve those goals, and more support from the international community.
Leefe,
What makes you think that “Israel has more support from the International community”?
They do have USA, granted, and maybe Murdoch, but you really think it goes deeper than that
Are you suggesting that those who deny International Law are in the minority?
Sorry. The Balfour letter was written in 1917.
And I must add that Zionism in Israel has also been stealing land from the West Bank and bashing people there.
Yes indeed OldWomBat and PP, entirely agree.
We’re not getting much about the changing views / risks emanating from other Arab states. I can’t help trying to imagine what sort of sanitized TV, newspaper / online stuff the Israelis are being fed. It seemed to me that last night’s ABC 7.30 Report interview with a bombastic and hostile Israeli Strategic Affairs Minister Ron Dermer revealed Israel’s back against a wall, and his responses largely made for an Israeli audience and as fodder for certain Jewish ears in Oz.
Last night listened to an ABC RN Late Night Live interview with Lebanese/Australian journalist Rania Abouzeid regarding Jordan amongst others. Well worth a listen, especially given the death of the Iranian President, and Israel govt banning and removal of Al Jazeera, and possibly AAP and its pressure on Haaretz.
https://www.abc.net.au/listen/programs/latenightlive/late-night-jordan-in-uproar-over-treatment-of-palestinians/103883836
Israel was created by and founded upon Zionist terrorism. The USA uses terrorism to further its aims whenever it so chooses. Hamas uses terrorism because it has no other recourse.
To quote Sleepy Joe. “And let me be clear: whatever this prosecutor might imply, there is no equivalence – none – between Israel and Hamas.”
Exactly! One is a nation stealing genocidal right wing junta that think they are blessed by a fictional being and above the laws that govern all of us, while the other are freedom fighters wanting their own country back, or at least one they can call their own again after 70+ years of trying.
NO COMPARISION WHAT SO EVER!