Everything US President Joe Biden said in response to the ICC arrest warrants for Israeli leaders was factually wrong.
Juan Cole teaches Middle Eastern and South Asian history at the University of Michigan. His newest book, “Muhammad: Prophet of Peace Amid the Clash of Empires” was published in 2020.
Cross-posted from Common Dreams
Karim A.A. Khan, chief prosecutor of the International Criminal Court (ICC), said Monday that he is asking the the ICC to issue arrest warrants for several Hamas leaders as well as Israeli Prime Minister Benjamin Netanyahu and Secretary of Defense Yoav Gallant.
It is the first time the ICC has sought warrants against leaders of a parliamentary government. Most of the officials indicted have been from African dictatorial regimes. If the warrants are approved, in a process that may take several months, Netanyahu and Galant will join a rogues gallery featuring deposed Libyan strongman Moammar Gaddafi, deposed Sudanese dictator Omar al-Bashir, and Russian President Vladimir Putin.
In March, 2023, just a year ago, Secretary of State Antony Blinken asked all countries that are parties to the ICC to detain Vladimir Putin if they could, after the court issued an arrest warrant for him. Russia is not a signatory to the Rome Statute that authorizes the court, but in 2015 Ukraine (also not a signatory) granted jurisdiction to the court over Ukrainian territory. It was for crimes committed in Ukraine that Putin was indicted.
The reaction in Washington to the warrant request for Netanyahu and Galant has been the opposite. This reaction shows that the Biden administration does not respect international law and does not care that Putin committed crimes under it, but just wants to stick it to Putin. It is personalistic, not a matter of law. Because if the law was at issue, it should apply to everyone, including (especially) Benjamin Netanyahu, the Butcher of Gaza.
Everything Washington officials said in response to the request for warrants was wrong. I mean, incorrect. It isn’t a matter of opinion or a difference in values. They are spewing falsehoods. It is as though they have all contracted Trumpitis and now keep compulsively telling serial lies.
President Biden, apparently now the chief defense attorney for Netanyahu, denounced any “equivalence” between Hamas and the Israeli leadership and said that he rejects charges of genocide against it.
Biden’s spokespeople questioned whether the ICC has jurisdiction to charge the Israeli leaders.
Secretary of State Antony Blinken condemned the announcement as “outrageous” and said that it threatened the success of negotiations toward a ceasefire and a hostage release. Mr. Blinken did not explain why the ICC request for warrants should should delay a ceasefire. The Biden administration vetoed 3 ceasefire calls at the UN Security Council earlier this year, and abstained on a fourth, which it undercut by falsely damning it as “non-binding.”
Speaker of the House of Representatives Mike Johnson said he and his colleagues would look into the possibility of placing sanctions on the ICC judges and their families.
The 18 judges are elected to nine-year terms by an assembly of the 124 states that are signatories to the Rome Statute, finalized in 2002, which authorizes the court and lays out International Humanitarian Law. The ICC therefore represents nearly two thirds of the countries in the world. Mike Johnson represents a district in Louisiana.
The parties to the International Criminal Court include Britain, Canada, France, Belgium, Germany, Italy, the Netherlands, Norway, Denmark, Ireland, Switzerland, Japan, Spain, Sweden, as well as the State of Palestine and large numbers of countries in Asia, Africa, Latin America and the Pacific. It took some courage to sign the Rome Statute, since the officials of the signatory country place themselves under the authority of the judges. It is not a courage that the United States, Israel or Russia displayed, and it is disgraceful that the United States has not signed the major human rights instrument of the twenty-first century.
So why is everything Washington is saying about the decision of Karim Khan wrong?
First, the request for warrants does not make an equivalence between Israel and Hamas. The court does not judge countries, it judges individual officials.
These are the charges against the three Hamas leaders, aside from just killing a lot of innocents:
— 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(l)(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.
Rape, torture, hostage taking bulk large.
Here are the charges against Netanyahu and Gallant:
—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).
The charges aren’t the same, or equivalent, at all. The Israeli officials are charged with starving the civilian population, blowing up the civilian population, exterminating the civilian population. There is no mention of rape or torture or hostage taking. In each case the officials are being charged for their specific actions.
The Israeli officials are not charged with genocide by the ICC, contrary to what Mr. Biden alleged.
The reason that the ICC has jurisdiction is that the State of Palestine has very doggedly and brilliantly arranged for that jurisdiction. First, Palestine sought to be admitted as a non-member observer state of the United Nations, the same status that the Vatican has. The UN General Assembly voted Palestine in some 12 years ago. As an observer state, it gained the right to become a signatory to the Rome Statute, which it did in 2015. Then Palestine asked the ICC to exercise jurisdiction over the Occupied Palestinian Territories, which had de jure been granted to the State of Palestine by the 1993 Oslo Peace Treaty, signed by Bill Clinton, Yitzhak Rabin and Yasser Arafat.
On February 5, 2021, the ICC concluded that it does have jurisdiction over actions taken in the Occupied Territories. Gaza is included in that jurisdiction.
Hence, the ICC can issue the request for warrants against Hamas war criminals as well as against Israeli officials who commit war crimes or crimes against humanity in the Occupied Territories. It most definitely has jurisdiction. In fact, since Palestine is a party to the ICC, the case for jurisdiction here is much stronger than for Ukraine and Putin.
Prime Minister Netanyahu has repeatedly rejected the whole notion of a ceasefire and contrary to Mr. Blinken’s flagrant toadying there is no prospect of any such ceasefire. Hamas offered a hostage deal on the eve of the invasion of Rafah, and Netanyahu invaded precisely in order to torpedo any deal. That is why Israelis are demonstrating in the tens of thousands against Netanyahu. If Blinken had any shame he’d fly to Tel Aviv and join them. The ICC decision is completely irrelevant to negotiations, which have in any case collapsed and are not ongoing. Blinken is trying to blame Karim Khan for his own egregious failure as a diplomat. Unlike Khan, Blinken has done nothing practical to hold Netanyahu to account for repeatedly violating the Biden administration’s toothless red lines.
As for Mike Johnson and his merry band of GOP troglodytes, he should be careful if he’d ever like to vacation in Rio or in most of Europe.
Article 70 of the Rome Statute has these paragraphs prohibiting:
d) Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties;
(e) Retaliating against an official of the Court on account of duties performed by that or another official;
The Court should play hardball with politicians that try to sanction its judges and should issue warrants against them. Wouldn’t it be lovely to see Mike Johnson arrested while on vacation at the Copacabana Beach in Rio de Janeiro and unceremoniously flown to the Hague in handcuffs? And Mike Pompeo and Trump, who did sanction ICC judges, should also have warrants out. Though with Trump the ICC would have to get in line behind a whole gaggle of prosecutors waving warrants for an endless list of crimes.
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