Selective enforcer: ICC must warn Israel on crimes against humanity

Oct 11, 2023
Bogota, Colombia. 06th June, 2023. International Criminal Court Prosecutor Karim Khan speaks at Colombia's Special Jurisdiction for Peace (JEP) during the visit of the Prosecutor of the International Criminal Court, in Bogota, Colombia, on June 06, 2023. Image: Long Visual Press/Alamy Live News

The International Criminal Court (ICC) faces a test of its credibility in how it monitors and deals with the conduct of Israel as it strikes back against the horrific attacks committed by Hamas.

It must send a clear warning that while Israel has a right to defend itself, crimes against humanity and war crimes will not be tolerated. If they are committed there must be as swift a reaction from the ICC as there has been in relation to Russia and President Vladimir Putin in the context of the Ukrainian conflict. And to make it clear the ICC stands with the victims of breaches of the Rome Statute, the instrument which the ICC works under, by its chief prosecutor Karim Khan KC must visit the Gaza sooner than later, just as he did in Ukraine.

Tragically for the Palestinian people the ICC’s track record on Israel’s crimes against humanity and war crimes is one of neglect and disinterest. So now is the time for this Hague based institution to show the world it is not simply a selective enforcer of international human rights law, an accusation which has been made over a number of years.

Already Israel is demonstrating that it will go beyond defending itself in line with internationally accepted norms and conventions. The language of its leaders in response to the crimes of Hamas is frightening. It appears to have the intent do whatever it takes to destroy the people of the Gaza. In other words commit crimes against humanity and war crimes.

Take the statement yesterday by the Israeli Defence Minister Yoav Gallant that he is imposing “a complete siege on Gaza,” And, that “[t]here will be no electricity, no food, no water, no fuel. Everything will be closed.” In other words starve the residents of Gaza, and ensure they cannot operate health facilities. This is clearly, if carried out, a crime against humanity under Article 7 of the Rome Statute which defines ‘crimes against humanity’ to be “intentionally causing great suffering, or serious injury to body or to mental or physical health.” Article 7 also defines ‘extermination’, the meaning of which “includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.”

And what about, and this is tragically going to be a figure that rises daily, the murder by Israel of 91 children and 61 women as at last night (Monday). Once again a clear breach of the Rome Statute which states that ‘war crimes’ includes, “[d]eclaring that no quarter will be given” and “[i]ntentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.” And the intent to starve the residents of the Gaza strip is also a war crime because it is “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions.”

In summary, only three days in to Israel’s counter-offensive and we have demonstrable evidence of breaches of the Rome Statute by the Israeli government and its leadership.

Remember the ICC’s response when Russia has been accused of war crimes in Ukraine? Khan couldn’t wait to get the media to publicise his wandering around a scene of devastation. In fact he has visited Ukraine on no less than four occasions. He has said a major focus of his work is to ensure “that children must no longer be the forgotten victims of conflict.” Do Palestinian children count?

In contrast to his whirlwind of activity in Ukraine Khan has shown little inclination to investigate Israel in the past despite his predecessor Fatou Bensouda announcing in 2021 an investigation “covering crimes within the jurisdiction of the Court that are alleged to have been committed in the [Gaza war] since 13 June 2014, the date to which reference is made in the referral of the situation to my office.” Khan, when asked about following up on allegations against Israel has said he intended to visit but given no dates.

One hopes that this intention turns into something concrete and happens now. The ICC needs to see for itself the disproportionate response of Israel, its modus operandi as we know, to the unconscionable murders of Israelis by Hamas.

If the ICC does not warn Israel now, and Khan and his team refuse to head to the Gaza to make the point they are watching Israel’s leadership closely and investigating possible crimes against humanity and war crimes, then this institution will be telling the world that when it comes to the Palestinians Israel can act with impunity.

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