{"id":262914,"date":"2024-05-27T12:01:10","date_gmt":"2024-05-27T11:01:10","guid":{"rendered":"https:\/\/www.transcend.org\/tms\/?p=262914"},"modified":"2024-05-24T06:30:46","modified_gmt":"2024-05-24T05:30:46","slug":"why-the-iccs-prosecutors-recommendation-to-arrest-israeli-and-hamas-leaders-may-be-historic","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2024\/05\/why-the-iccs-prosecutors-recommendation-to-arrest-israeli-and-hamas-leaders-may-be-historic\/","title":{"rendered":"Why the ICC\u2019s Prosecutor\u2019s Recommendation to Arrest Israeli and Hamas Leaders May Be Historic"},"content":{"rendered":"

This piece was published in <\/em>Middle East Eye and in<\/em> Common Dreams on 22 May 2024. The situation surrounding the arrest warrants is evolving so rapidly as to justify a later revision.<\/em><\/p>\n

Ironically, the misplaced rhetoric of outrage from Israel and its allies has endowed the ICC\u2019s pronouncements with an importance that the institution never before possessed.<\/em><\/p>\n

**********************************<\/p><\/blockquote>\n

23 May 2024 <\/em>– The International Criminal Court this week made the first truly historic move since its establishment in 2002, with its chief prosecutor recommending\u00a0arrest warrants<\/a>\u00a0against two top\u00a0Israeli<\/a>\u00a0officials, Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, and three prominent Hamas leaders.<\/p>\n

As expected, both sides have denounced this ICC action in the strongest possible language. Because of Western media bias, the angry\u00a0reactions from Israel<\/a>\u00a0and its allies have dominated the news cycle, while the official statement from Hamas has been largely ignored.<\/p>\n

While each side chose a similar line of argument, there is a 180\u00b0 difference in their substantive outlooks.<\/p>\n

\n

What is missing from the Israeli response has been any defense against the specificities of Israeli behavior, viewed around the globe as amounting to genocide.<\/em><\/strong><\/p>\n<\/blockquote>\n

Israel\u2019s most fundamental\u00a0objection<\/a>\u00a0to the prosecutor\u2019s action is the supposed equivalence drawn between Hamas, which perpetrated the barbarous attack of October 7, and the democratically elected government of\u00a0Israel<\/a>, which says it acted to defend itself and restore the security of its population.<\/p>\n

Hamas and its supporters are also\u00a0appalled<\/a>\u00a0at the equivalence implied by the call for arrest warrants, which \u201cequate[s] the victim with the executioner\u201d in the context of an oppressive Israeli\u00a0occupation<\/a>\u00a0that affirms\u00a0Palestinian<\/a>\u00a0legal rights of resistance, including recourse to armed struggle.<\/p>\n

In my judgment, the Israeli response is rhetorical and polemical, to the effect that Israel and its leaders can never be accused of criminality in a context shaped by what happened on October 7, identified as the worst attack on the Jewish people\u00a0since the Holocaust<\/a>.<\/p>\n

Netanyahu\u00a0called<\/a>\u00a0the recommendation for arrest warrants \u201ca moral outrage of historic proportions\u201d\u2014a \u201ctravesty of justice\u201d that sets \u201ca dangerous precedent,\u201d interfering with the right of democratic states to defend themselves.<\/p>\n

Defense Lacking<\/strong><\/h3>\n

What is missing from the Israeli response has been any defense against the specificities of Israeli behavior, viewed around the globe as amounting to genocide, as evidenced by growing protests even in the\u00a0U.S<\/a>., Israel\u2019s most unwavering supporter.<\/p>\n

The crimes and the evidence are delimited in the language of law, and they are certainly of a magnitude and severity to require a good-faith substantive response by Israel. Nothing less can convince world opinion that the ICC prosecutor exceeded his writ by proposing arrest warrants.<\/p>\n

It is especially relevant to refer back to the\u00a0International Court of Justice<\/a>\u2019s near-unanimous interim order in January as evidence that the charges against Israel\u2019s leaders are hardly a disgrace or a dangerous precedent. That ruling gives firm, if provisional, grounds for believing that Israel\u2019s violence after October 7 constitutes a deplorable instance of sustained genocide targeting the entire civilian population\u00a0of Gaza<\/a>.<\/p>\n

\n

Although U.S. officials now complain about jurisdictional obstacles to indicting nationals of countries that are not parties to the ICC\u2019s Rome Statute, Washington enthusiastically supported the court\u2019s hasty indictment of\u00a0<\/em><\/strong>Russian<\/em><\/strong><\/a>\u00a0President Vladimir Putin soon after the 2022 invasion of Ukraine.<\/em><\/strong><\/p>\n<\/blockquote>\n

To a far lesser extent, the same criticism applies to the Hamas response. Although the prosecutor should have addressed the context of a long abusive occupation and victimization in violation of international humanitarian law, this does not confer impunity on such criminal excesses as were committed on October 7.<\/p>\n

The call to issue arrest warrants against Hamas leaders is dubious because of the absence to date of an impartial international investigation into what actually happened on October 7, and of evidence that the Hamas leaders\u2014as opposed to other Palestinian resistance entities, such as Islamic Jihad\u2014have been properly singled out.<\/p>\n

It should come as no surprise that the U.S.\u00a0leapt to Israel\u2019s defense<\/a>, joining in a rather mindless attack on the credibility of this treaty-based global tribunal, which has a mandate to investigate and take action against perpetrators of international crimes.<\/p>\n

Although U.S. officials now complain about jurisdictional obstacles to indicting nationals of countries that are not parties to the ICC\u2019s Rome Statute, Washington enthusiastically supported the court\u2019s hasty indictment of\u00a0Russian<\/a>\u00a0President\u00a0Vladimir Putin<\/a>\u00a0soon after the 2022\u00a0invasion of Ukraine<\/a>. Such double standards exhibit moral hypocrisy and juridical nihilism, with the U.S. invoking international procedures as foreign policy instruments rather than universally applicable norms.<\/p>\n

Irrelevant Statement<\/strong><\/h3>\n

In a striking phrase that could have come from the Israeli government, U.S. President Joe Biden\u00a0said on Monday<\/a>, \u201cWhatever this prosecutor might imply, there is no equivalence\u2014none\u2014between Israel and Hamas.\u201d He backed up this legally irrelevant statement with the categorical assertion that \u201cwe will always stand with Israel against threats to its security.\u201d<\/p>\n

Again, this is irrelevant. The only question is whether the evidence supports the issuance of arrest warrants. In reiterating such a one-sided stance, Biden is reinforcing the complaints of protesters everywhere that Washington is complicit in the most transparently reported genocide confirmed in real time, and not in retrospect or abstractly, as was the case even with the Holocaust.<\/p>\n

Ironically, the misplaced rhetoric of outrage from Israel and its allies has endowed the ICC\u2019s pronouncements with an importance that the institution never before possessed.<\/p>\n

\n

The Biden leadership, through its posture of unconditional support for Israel and irresponsible denunciation of the ICC, has turned its back on its own younger generation.<\/em><\/strong><\/p>\n<\/blockquote>\n

Beneath the smoke of controversy is the fire of a massive campaign of state terrorism that was projected at first as defensive and reactive violence, but quickly showed its true colours as premeditated violence and forced relocation of Palestinians in\u00a0Gaza<\/a>, increasingly remote from Israel\u2019s genuine security concerns.<\/p>\n

Also forgotten in the controversies of recent months is the context set by the Netanyahu government prior to the Hamas attack. Even in the West, this governing coalition was described as the\u00a0most extreme<\/a>\u00a0in the history of Israel. What made it so was its undisguised effort to initiate a settler-led campaign to make life as unliveable as possible for Palestinians in the occupied West Bank,\u00a0expressed by a message<\/a>\u00a0delivered in various ways to the effect of: \u201cLeave or we will kill you.\u201d<\/p>\n

The Israeli government, including extremist cabinet ministers\u00a0Itamar Ben Gvir<\/a>\u00a0and\u00a0Bezalel Smotrich<\/a>, green-lit this violence as part of their priority goal of unilaterally establishing Greater Israel, and ending all Palestinian prospects of statehood or any meaningful form of self-determination.<\/p>\n

Multiple Failures<\/strong><\/h3>\n

In addition, the fact that Israel received\u00a0advance warning<\/a>\u00a0of a planned and rehearsed Hamas attack, possessed elaborate surveillance and informer capabilities, and reacted to the attack with uncharacteristic incompetence, all make it hard to believe that a massive response scenario was not already agreed upon by the Israeli leadership before a single hostage was seized.<\/p>\n

When the Israeli retaliation did commence, it was immediately imbued with genocidal tactics and language, including policies to\u00a0deprive Palestinians<\/a>\u00a0in Gaza of food, fuel, electricity, and water. Most revealing were the forced relocations of Palestinians from northern to southern Gaza, the gruesome attacks on hospitals and population centers, the use of starvation as a weapon of war, and the ongoing efforts to induce\u00a0Egypt<\/a>\u00a0and other countries to accept large numbers of Palestinian refugees.<\/p>\n

This sustained campaign seems to have become increasingly self-destructive from the perspective of Israeli security. Many Israelis now believe that the Netanyahu leadership is responsible for multiple failures: to destroy Hamas, to achieve the safe return of hostages, and to preserve the country\u2019s reputation as a legitimate sovereign state.<\/p>\n

\n

By evading any mention of genocide, Khan can justly be accused of ignoring the elephant in the room.<\/em><\/strong><\/p>\n<\/blockquote>\n

The Biden leadership, through its posture of unconditional support for Israel and irresponsible denunciation of the ICC, has turned its back on its own younger generation, unleashing\u00a0police brutality<\/a>\u00a0and punitive actions against pro-Palestinian activism. It has been totally irresponsible to pretend there is no legal merit to the charges of genocide being leveled against Israel; its behavior\u00a0at the United Nations<\/a>\u00a0has damaged international law and the character of self-righteous liberal democracies.<\/p>\n

The ICC prosecutor is also deserving of criticism. There is no proper equivalence between the one-off attack of October 7, despite its atrocities, and the seven-month Israeli campaign of death and devastation in Gaza.<\/p>\n

Over time I suspect that the failure to address \u201cgenocide\u201d will be regarded as the most shocking weakness in the prosecutor\u2019s formal statement.<\/p>\n

At the very least ICC Prosecutor Karim Khan should have explained why it would have been legally premature to include this most serious and widespread allegation against Israel among the grounds for recommending that the ICC issue arrest warrants for Netanyahu and Gallant. By evading any mention of genocide, Khan can justly be accused of ignoring the elephant in the room.<\/p>\n

Meanwhile, we should hope that the\u00a0panel of judges<\/a> will accept the prosecutors\u2019 recommendation and issue warrants against Israeli and Hamas leaders\u2014while also doing their best to erase the impression of equivalence. If the ICC sticks to its underlying principled position, it will enhance its reputation as a dimension of global governance not tainted by partisan geopolitics.<\/p>\n

__________________________________________<\/em><\/p>\n

\"\"<\/a>Prof. Richard Falk is a member of the <\/em>TRANSCEND Network<\/em><\/strong><\/a>, Albert G. Milbank Professor Emeritus of International Law at Princeton University, Chair of Global Law, Faculty of Law, at Queen Mary University London, Research Associate the Orfalea Center of Global Studies at the University of California, Santa Barbara, and Fellow of the Tellus Institute. He directed the project on Global Climate Change, Human Security, and Democracy at UCSB and formerly served as director the North American group in the World Order Models Project. Between 2008 and 2014, Falk served as UN Special Rapporteur on Human Rights in Occupied Palestine. His book,\u00a0<\/em>(Re)Imagining Humane Global Governance\u00a0(2014), proposes a value-oriented assessment of world order and future trends. His most recent books are\u00a0<\/em>Power Shift\u00a0(2016);\u00a0<\/em>Revisiting the Vietnam War\u00a0(2017);\u00a0<\/em>On Nuclear Weapons: Denuclearization, Demilitarization and Disarmament\u00a0(2019); and\u00a0<\/em>On Public Imagination: A Political & Ethical Imperative, ed. with Victor Faessel & Michael Curtin (2019).\u00a0He\u00a0is the author or coauthor of other books, including\u00a0<\/em>Religion and Humane Global Governance\u00a0(2001),\u00a0<\/em>Explorations at the Edge of Time\u00a0(1993),\u00a0<\/em>Revolutionaries and Functionaries\u00a0(1988),\u00a0<\/em>The Promise of World Order\u00a0(1988),\u00a0<\/em>Indefensible Weapons (with Robert Jay Lifton, 1983),\u00a0<\/em>A Study of Future Worlds\u00a0(1975), and\u00a0<\/em>This Endangered Planet\u00a0(1972).\u00a0His memoir,\u00a0<\/em>Public Intellectual: The Life of a Citizen Pilgrim\u00a0was published in March 2021 and received an award from Global Policy Institute at Loyala Marymount University as \u2018the best book of 2021.<\/strong>\u2019 He has been nominated frequently for the Nobel Peace Prize since 2009.<\/em><\/p>\n

Go to Original \u2013 richardfalk.org<\/a><\/p>\n

 <\/p>\n

Join the<\/em><\/strong> BDS-BOYCOTT, DIVESTMENT, SANCTIONS <\/em><\/strong>campaign<\/em><\/strong><\/span> to protest the Israeli barbaric siege of Gaza, illegal occupation of the Palestine nation\u2019s territory, the apartheid wall, its inhuman and degrading treatment of the Palestinian people, and the more than 7,000 Palestinian men, women, elderly and children arbitrarily locked up in Israeli prisons.<\/p>\n

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7 2 9: BOYCOTT FOR JUSTICE!<\/strong><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

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