• Details from UN reports and past genocides shed light on why ICJ and ICC will struggle to apprehend Netanyahu.
• Could ICC and ICJ unwittingly give the West a way to escape blame for the mass genocide being committed by illegal Israeli occupiers?
Almost eight horrific months in with over 36,000 dead; and over 80,000 injured. Now with the United Nations recently disclosing that over a million have fled Rafah— how has the massacre of Palestinians not yet officially been labelled a genocide? There have been many instances in recent history where genocide was called without hesitation.
Rohingya Genocide
The West widely condemned what took place in 2016 in Myanmar with the Muslim Rohingya population. The sudden upheaval, brutality and scale of the mass genocide was shocking. Even now, the true number of people killed could not be accurately obtained owing to the level of devastation.
Based on broad UN estimates, fatalities were said to be between 9000 – 43000 with over 100,000 confined to camps in Myanmar. Almost a million also fled southeast to the neighbouring country – Bangladesh where most were said to originate from, through the migration of previous generations.
In Aug 2018, the UN called for the Rohingya case to be referred to the ICC. To date, the ICC and Karim Khan who leads the investigation into the genocide have been denied entry to Myanmar to collect evidence.
Sudan Genocide
Another genocide case that involved the ICC took place in Darfur, Sudan. This would be the most akin to the genocide being recorded in Gaza, in terms of scale, relentless brutality, prejudice and oppression. The last death toll recorded by the UN in 2015 was between 100,000 to 400,000 killed and 2.2 million displaced.
The Sudanese President Omar Al-Bashir had been charged initially for war crimes in 2009 as ICC judges ruled there was insufficient evidence for Al-Bashir to be accused of genocide. The ICC then issued a warrant in July 2010 containing three separate counts of genocide on Al-Bashir’s ethnic cleansing of three native tribes.
ICC Criticism and Non-Compliance
By the end of 2008, the government of Sudan was no longer a member of the ‘Rome Statute’ – which the UN used to form the ICC – and no longer recognised the ICC’s authority, much like the US, Israel and Russia. Other countries like China and India never signed up for the ‘Rome Statute’ showing that they never believed in the UN or the ICC since its inception.
In 2010 Al-Bashir described the situation of the charges against him as being “a political issue and [reeked of] double standards because there are obvious crimes like Palestine, Iraq and Afghanistan, but [they] did not find their way to the International Criminal Court.” He also said: “The clearest cases in the world such as Palestine and Iraq and Afghanistan, clear crimes to the whole humanity – all were not transferred to the court.”
Countries such as those in the Arab League and the African Union condemned the warrant. After his indictment, Al-Bashir’s support grew from countries he visited whilst indicted. This included China, Egypt, Ethiopia, India, Libya, Nigeria, Turkey, Qatar, Saudi Arabia, the UAE, and several other countries, all of which refused to have him arrested. ICC member states Chad and Denmark also refused to arrest Al-Bashir.
So far, Sudan has not yet surrendered Al-Bashir despite a commitment in 2020 to the ICC that it would do so, with a follow-up visit to Sudan later that year by the then ICC Chief Prosecutor Fatou Bensouda – both actions took place 10 years after charges were initially brought against him.
During her time as Chief Prosecutor, Fatou Bensouda was said to have been threatened by former Israeli Mossad Director Yossi Cohen for opening an investigation into Israel for war crimes against Gaza in 2014. As an ICC Chief Prosecutor, it is concerning that this only came to light this week.
It was also around this time that accusations were aimed at the ICC by several members of the African Union who expressed anger at the ICC. They called it “racist” for failing to file charges against Western leaders or Western allies while prosecuting only African suspects. The African Union demanded that the ICC protect African heads of state from prosecution.
Current ICC Chief Prosecutor Karim Khan’s integrity was also called into question in December 2023, when he visited Israel and the occupied West Bank upon request of families of the October 7th victims and was also due to meet Palestinian officials in Ramallah.
Palestinian human rights groups refused to meet Khan, accusing him of favouring false Israeli accusations over longstanding Palestinian charges. Palestinian activists said they objected on account of what they saw as unequal treatment of Israeli and Palestinian cases. Ammar Al-Dwaik, director general of the Independent Commission for Human Rights (ICHR) said:
“I think the way this visit has been handled shows that Mr Khan is not handling his work in an independent and professional manner.”
From just two of the most widely known genocides this century, that happen to predominantly involve Muslims we can extract just how ineffective the ICC has been in terms of physically exercising the warrants issued in their court.
Can we really expect anything different from the ICC for the genocide currently being committed by the illegal Israeli occupiers against the millions of innocent Palestinian mothers and children?
Lacking Genocidal Intent
The main issue lies with the method in which the ICC is investigating this genocide and its impact on the West with the help of Western mainstream media and the Western brand of justice.
The UN Special Rapporteur Francesca Albanese stated in her UN report ‘Anatomy of a Genocide’ that:
“The ICJ and ICC have jurisdiction over the crime of genocide, and so do State domestic courts. Prior to the establishment of the ICC, ad hoc international criminal tribunals advanced their interpretation of what constitutes genocide, its intent and required evidence.”
This would imply that every state has their own measure of what constitutes a genocide. This is likely to become the ICC’s undoing when it has to face the sterner test and scrutiny of the West, who believe their laws and courts are ‘the highest in the land’ with UK Prime Minister and genocide enabler Rishi Sunak typifying that attitude when he recently sidestepped the question on whether he would respect the ICC’s judgement, should warrants be issued for the illegal Israeli occupiers’ leader Netanyahu.
Karim Khan has done a disservice to the people of Palestine!
Khan has done a disservice to Palestinians by initially failing to highlight the clear genocidal intent of the illegal Israeli occupiers and the destructive path they have taken to eradicate the natives as Western colonisers have proceeded to do so throughout history.
Khan could add further charges at a later stage, as was the case in the Sudan genocide with Omar Al-Bashir. However, the daily uploaded recordings of the mass killings and video testimonies ought to havestrengthened the need to seek the warrants now rather than later.
Currently, the counts for the warrant being sought against the Hamas leaders are:
• Extermination as a crime against humanity, contrary to article 7(1)(b) of the ‘Rome Statute’;
• Murder as a crime against humanity, contrary to article 7(1)(a), and as a war crime, contrary to article 8(2)(c)(i);
• Taking hostages as a war crime, contrary to article 8(2)(c)(iii);
• Rape and other acts of sexual violence as crimes against humanity, contrary to article 7(1)(g), and also as war crimes pursuant to article 8(2)(e)(vi) in the context of captivity;
• Torture as a crime against humanity, contrary to article 7(1)(f), and also as a war crime, contrary to article 8(2)(c)(i), in the context of captivity;
• Other inhumane acts as a crime against humanity, contrary to article 7(1)(k), in the context of captivity;
• Cruel treatment as a war crime contrary to article 8(2)(c)(i), in the context of captivity; and
• Outrages upon personal dignity as a war crime, contrary to article 8(2)(c)(ii), in the context of captivity.
Comparably, the warrant for charges being sought against BenjaminNetanyahu and Yoav Gallant are:
• Starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of the Statute;
• Wilfully causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii), or cruel treatment as a war crime contrary to article 8(2)(c)(i);
• Wilful killing contrary to article 8(2)(a)(i), or Murder as a war crime contrary to article 8(2)(c)(i);
• Intentionally directing attacks against a civilian population as a war crime contrary to articles 8(2)(b)(i), or 8(2)(e)(i);
• Extermination and/or murder contrary to articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity;
• Persecution as a crime against humanity contrary to article 7(1)(h);
• Other inhumane acts as crimes against humanity contrary to article 7(1)(k)
Key Details Intentionally Overlooked or Omitted?
Though firmly debunked the ICC is again looking to seek a warrant for one count of ‘rape and other acts of sexual violence as crimes against humanity’ against the Hamas leaders, who must take individual responsibility for possible atrocities by fighters under their command. It is unclear whether Hamas fighters had to have been commanded to commit such atrocities for a count such as this to stand.
If this is the case, then Netanyahu’s call to his fellow illegal Israeli occupiers to remember ‘Amalek’ must also be considered when one looks at the biblical references as a command to commit ‘rape and other acts of sexual violence as crimes against humanity.’
Netanyahu quoting Amalek to his fellow illegal occupiers
Vile atrocities and mass murder against women and children such asbeing tortured, beheaded, disembowelled, cut open or burned alive after being raped or taken to the Israeli concentration camps where they are subjected to further exploitation and torture.
Such a charge must also be brought against Netanyahu especially as Karim Khan has hesitated to act on public calls of mass genocide. It is also well-documented that the ICC, UN, and other nations and organisations (as well as mainstream media) are continually being denied access to the camps where women and children are being held and Gaza itself, where further proof can be found in the dead bodies strewn across the Strip and the atrocities that are still occurring.
Setting the Genocide Record Straight!
Any one of the following genocide counts – though most reasonable people would believe Netanyahu has breached all of the following ICC counts along with many of his administration:
• 6 (a) Genocide by killing • 6 (b) Genocide by causing serious bodily or mental harm • 6 (c) Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction • 6 (d) Genocide by imposing measures intended to prevent births • 6 (e) Genocide by forcibly transferring children
Each count of genocide carries at least four elements with the following being prevalent across all five counts:
1. The type of harm caused to one or more persons.
2. Such person or persons belonged to a particular national, ethnical, racial or religious group.
3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.
4. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.
When we look at the ICC’s definition of what constitutes genocide and the elements that need to be met, there is one element defined as a‘manifest pattern’ criteria which, would need to be met to qualify as a genocide (as emphasised by the ICC and the UN report):
“With respect to the last element listed for each crime:
(a) The term “in the context of” would include the initial acts in an emerging pattern;
(b) The term “manifest” is an objective qualification;
(c) Notwithstanding the normal requirement for a mental element provided for in article 30, and recognizing that knowledge of the circumstances will usually be addressed in proving genocidal intent, the appropriate requirement, if any, for a mental element regarding this circumstance will need to be decided by the Court on a case-by-case basis”
“The ICC requires that such facts or circumstances take “place in the context of a manifest pattern of similar conduct directed against the group or… conduct that could itself effect such destruction”. International tribunals have also established that indirect intent can consist of a manifest pattern of similar conduct over time. The systematicity with which genocidal acts are committed implies a degree of “preconceived plan or policy”.
This element can be interpreted as having been left intentionally vague, which can benefit people who wish to challenge the legal view of the ICC, as each state has its own determination of what would be considered a war crime.
Given the desperation of the West currently, you would not put it beyond them to make such a challenge and have the courts carry this on for years, rather much in the same way Donald Trump is making a mockery of the current US legal system.
Giving Israelis and Zionists a Way Out
America, the UK, Austria and the Czech Republic have publicly denounced the move made by Karim Khan to seek a warrant for the preceding charges as having “no moral equivalency” when it comes to Israel vs Hamas. To some degree, people would agree with that quote, especially as there is no mention of the genocide being committed by Netanyahu in any of the counts the ICC are seeking warrants for.
Should the current ICC warrants be granted and remain as they are, the ICJ could keep genocide claims at bay by referring to the warrants the ICC have issued, where none currently refer to genocide. This would then help the Israelis challenge the ICJ and possibly limit the charges and sanctions the ICJ would place on them, especially as they have been using the October 7th attacks of Hamas heavily to justify their actions.
Hamas’s attack on the illegal Israeli occupiers will be key in ensuring the West can continue to argue why this does not constitute genocide, creating the discord needed to justify their position and disregard any impending ICC warrants, as other nations have done in the past, allowing free movement within non-member states.
It is also worth noting that even if the ICC obtain a warrant and apprehends the suspected war criminals, it does in no way guarantee the prosecution of the persons suspected of committing the most serious crimes as stated in the ICC publication ‘Understanding the ICC’:
“Will the ICC prosecute all persons suspected of committing the most serious crimes?”
“No. The Court will not be able to bring to justice every person suspected of committing crimes of concern to the international community. The prosecutorial policy of the Office of the Prosecutor is to focus its investigations and prosecutions on those who, having regard to the evidence gathered, bear the greatest responsibility for such crimes.”
We must also take note of the past affiliations Karim Khan and his brother have had with the Conservative Party who are Zionists and staunch defenders of Netanyahu and the illegal Israeli occupiers.
The way Karim Khan had highlighted first the need to attain warrants for Hamas leaders in his ICC video upload ahead of the need to seek warrants for Netanyahu and Gallant only goes on to fuel the Western media’s narrative that had Hamas not attacked on October 7th then the Israelis would not have responded, irrespective of what took place before then.
It should be said that systemic oppression over a considerable period is bound to incite a reaction. It is like taking a stick to go and continually poke a wasp’s nest. Eventually, you would expect to be stung at which point you can’t pass the blame for something you should not have done in the first place.
Source 1: https://www.icc-cpi.int/sites/default/files/Publications/Elements-of-Crimes.pdf
Source 2: https://www.un.org/unispal/wp-content/uploads/2024/03/a-hrc-55-73-auv.pdf
Source 3: https://www.icc-cpi.int/sites/default/files/Publications/understanding-the-icc.pdf
