Israel, US scramble to thwart ICC indictments over Gaza war atrocities

Israel and the US have mounted a vigorous joint effort to block a possible indictment by the International Criminal Court (ICC) of senior Israeli officials for crimes committed during the ongoing Gaza war. The focus of the charges is to be that Israel has “deliberately starved Gaza”.

On the weekend, liberal Israeli daily Haaretz reported that Israeli officials said warrants could be served on prime minister Benjamin Netanyahu, Defence minister Yoav Gallant and armed forces chief Herzl Halevi.

The ICC handles allegations lodged against individuals while the International Court of Justice (ICJ), which is considering accusations that Israel is committing genocide in Gaza, investigates and prosecutes states for war crimes and crimes against humanity.

UN members accept the authority of the ICJ but only 124 have signed the statute of the ICC. Israel and the US are not ICC members but Palestine, which is recognised by the UN as a state observer, joined in 2015. This put the Israeli-occupied Palestinian territories under ICC jurisdiction, enabling the Palestinian Authority to lodge a case against Israel for its illegal West Bank and East Jerusalem colonies and against Israel and Hamas for the 2014 war on Gaza.

The previous ICC prosecutor Fatou Bensouda, from Gambia, announced the launch of an investigation in December 2019 and in February 2021 ICC judges “decided, by majority, that the Court’s territorial jurisdiction in the Situation in Palestine, a State party to the ICC Rome Statute, extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem”. The judges also ruled that the Court has jurisdiction over the situation since 2014 and rejected Israel’s argument that the ICC does not. Hamas has backed the ICC investigation despite being a target.

Bensouda’s successor Briton Karim Khan said in 2023 that war crimes committed by Palestinians on Israeli territory and by Israelis on Palestinian territory would be covered by the ICC’s Palestine investigation. In November 2023, Khan paid visits to the Rafah crossing between Egypt and Gaza, Israel where he met families of victims of Hamas’ October 7th attack on Israel, and Ramallah where he discussed Israel’s onslaught on Gaza with the Palestinian Authority. At that time, he declared the investigation [of Israel and Hamas] is “moving forward at pace, with rigor, with determination and with an insistence that we act not on emotion but on solid evidence”.

He added that he was accelerating his existing probe into Israeli colonist violence against Palestinians.

In March 2023, just over a year after Russia invaded Ukraine, Khan issued arrests for two Russians, President Vladimir Putin and Commissioner for Children’s Rights Maria Lvova-Belova. Khan charged them with unlawful deportation and transfer of Ukrainian children from occupied areas of Ukraine to the Russian Federation, which violates the ICC Statute. He said his team had found evidence that some of the children had been adopted permanently and given Russian nationality.

This was rather speedy work for the ICC which has been stalling for years over Palestinian applications for investigations into Israel’s actions beginning with its disproportionate 2014 military assault on Gaza launched after three Israeli settler youths were killed by Hamas fighters in the West Bank. Between 2,125 and 2,310 Palestinians were killed and 10,626-10,895 were wounded, including 3,374 children; civilian casualties were 65-70 per cent.

Israel’s current war on Gaza, launched in response to the raid into southern Israel by Hamas which killed 1,139 and abducted 250, is hugely disproportionate. More than 34,000 Gazans have been slain, 75,000 wounded, 70 per cent of whom are women and children while civilian males are unfairly considered combatants. Israel estimates the number of Hamas fighters at 37,000 which is just over 12 per cent of males. Israel has also laid waste to Gaza and starved its Palestinian citizens to the point the strip is threatened with famine which will physically and psychologically negatively impact the entire generation of Gazans growing up in the devastated strip.

The legacy of Israel’s ongoing war is certain to be thousands of angry young men and women determined to retaliate against their tormentors. An Israeli military source has revealed that 60 per cent of Hamas fighters involved in this war have been orphaned by Israel during previous conflicts. UNICEF, the UN agency caring for children, has estimated that in February 17,000 children in Gaza were “unaccompanied” or separated from their parents. That number has risen since then.

Since children comprise half of Gaza’s population, deep, enduring trauma is certain to transform their lives, why did Khan fail to issue warrants for Israeli leaders many months ago? Western opposition, particularly from Israel’s loyal ally the US, was certainly a factor. Faced with rumours that Khan would issue warrants this week, Israel and the US have urged him to cancel or, at least, postpone this action.

However, accusations of double standards may have energised Khan. When the ICC issued warrants against Putin and Lvova-Belova, based territorial jurisdiction, US President Joe Biden said this was justified. Having accepted ICC action against Russians in Ukraine, he can hardly refuse the same treatment for Israeli leaders for alleged war crimes in Gaza.

What difference would warrants make as far as Netanyahu and his colleagues are concerned? While they would not be turned over by Israel to the ICC for trial, charged Israeli leaders could not travel to any of the 124 states which have signed the ICC statute. They include, inter alia, France, Denmark, Germany, Italy, Norway, Belgium, Canada, Spain, Austria, Sweden, The Netherlands, Britain, Switzerland, Cyprus, Portugal, Ireland, Greece, Australia, and Japan. Charged Israel leaders would most be at risk if they travelled to Western Europe which have long supported Israel whatever its behaviour.

ICC warrants would also undermine special treatment Israel has long received from its influential friends despite its occupation of and wars against the Palestinian people. ICC charges would make it more difficult for the US and Germany, to continue providing arms to Israel for use in committing war crimes without being accused of complicity.

Israeli human rights lawyer Michael Sfard has warned Israeli leaders on X, “Don’t investigate incitement to genocide; don’t investigate a fire policy that destroys entire cities, towns and villages; do not allow the free passage of humanitarian aid and you will cause starvation. But then don’t be surprised when you become a target of the International Criminal Court.”