To continue the Gaza genocide, Israel and the US must destroy the laws of war
The world's two highest courts have made an implacable enemy of Israel in trying to uphold international law and end Israeli atrocities in Gaza.
Separate announcements last week by the International Court of Justice (ICJ) and the International Criminal Court (ICC) should have forced Israel on to the back foot in Gaza.
A panel of judges at the ICJ – sometimes known as the World Court – demandedlast Friday that Israel immediately stop its current offensive on Rafah, in southern Gaza.
Instead, Israel responded by intensifying its atrocities.
On Sunday, it bombed a supposedly "safe zone" crowded with refugee families forced to flee from the rest of Gaza, which has been devastated by Israel’s rampage for the past eight months.
The air strike set fire to an area crammed with tents, killing dozens of Palestinians, many of whom burnt alive. A video shows a man holding aloft a baby beheaded by the Israeli blast.
Hundreds more, many of them women and children, suffered serious injuries, including horrifying burns.
Israel has destroyed almost all of the medical facilities that could treat Rafah's wounded, as well as denying entry to basic medical supplies such as painkillers that could ease their torment.
This was precisely the outcome US President Joe Biden warned of months ago when he suggested that an Israeli attack on Rafah would constitute a "red line".
But the US red line evaporated the moment Israel crossed it. The best Biden's officials could manage was a mealy-mouthed statement calling the images from Rafah "heart-breaking".
Such images were soon to be repeated, however. Israel attacked the same area again on Tuesday, killing at least 21 Palestinians, mostly women and children, as its tanks entered the centre of Rafah.
'A mechanism with teeth'
The World Court’s demand that Israel halt its attack on Rafah came in the wake of its decision in January to put Israel effectively on trial for genocide, a judicial process that could take years to complete.
In the meantime, the ICJ insisted, Israel had to refrain from any actions that risked a genocide of Palestinians. In last week’s ruling, the court strongly implied that the current attack on Rafah might advance just such an agenda.
Israel presumably dared to defy the court only because it was sure it had the Biden administration’s backing.
UN officials, admitting that they had run out of negatives to describe the ever-worsening catastrophe in Gaza, called it "hell on earth".
Days before the ICJ’s ruling, the wheels of its sister court, the ICC, finally began to turn.
Karim Khan, its chief prosecutor, announced last week that he would be seeking arrest warrants for Israel’s prime minister, Benjamin Netanyahu, and his defence minister, Yoav Gallant, along with three Hamas leaders.
Both Israeli leaders are accused of war crimes and crimes against humanity, including attempts to exterminate the population of Gaza through planned starvation.
Israel has been blocking aid deliveries for many months, creating famine, a situation only exacerbated by its recent seizure of a crossing between Egypt and Rafah through which aid was being delivered.
The ICC is a potentially more dangerous judicial mechanism for Israel than the ICJ.
The World Court is likely to take years to reach a judgement on whether Israel has definitively committed a genocide in Gaza – possibly too late to save much of its population.
The ICC, on the other hand, could potentially issue arrest warrants within days or weeks.
And while the World Court has no real enforcement mechanisms, given that the US is certain to veto any UN Security Council resolution seeking to hold Israel to account, an ICC ruling would place an obligation on more than 120 states that have ratified its founding document, the Rome Statute, to arrest Netanyahu and Gallant should either step on their soil.
That would make Europe and much of the world – though not the US – off-limits to both.
And there is no reason for Israeli officials to assume that the ICC’s investigations will finish with Netanyahu and Gallant. Over time, it could issue warrants for many more Israeli officials.
As one Israeli official has noted, "the ICC is a mechanism with teeth".
'Antisemitic' court
For that reason, Israel responded by going on the warpath, accusing the court of being "antisemitic" and threatening to harm its officials.
Washington appeared ready to add its muscle too.
Asked at a Senate committee hearing whether he would support a Republican proposal to impose sanctions on the ICC, Antony Blinken, Biden’s secretary of state, replied: "We want to work with you on a bipartisan basis to find an appropriate response."
Administration officials, speaking to the Financial Times, suggested the measures under consideration "would target prosecutor Karim Khan and others involved in the investigation".
US reprisals, according to the paper, would most likely be modelled on the sanctions imposed in 2020 by Donald Trump, Joe Biden’s predecessor, after the ICC threatened to investigate both Israel and the US over war crimes, in the occupied Palestinian territories and Afghanistan respectively.
Then, the Trump administration accused the ICC of "financial corruption and malfeasance at the highest levels" – allegations it never substantiated.
Fatou Bensouda, the chief prosecutor at the time, was denied entry to the US, and Trump officials threatened to confiscate her and the ICC judges’ assets and put them on trial. The administration also vowed to use force to liberate any Americans or Israelis who were arrested.
Mike Pompeo, the then US secretary of state, averred that Washington was "determined to prevent having Americans and our friends and allies in Israel and elsewhere hauled in by this corrupt ICC".
Covert war on ICC
In fact, a joint investigation by the Israeli website 972 and the British Guardian newspaper revealed this week that Israel – apparently with US support – has been running a covert war against the ICC for the best part of a decade.
Its offensive began after Palestine became a contracting party to the ICC in 2015, and intensified after Bensouda, Khan’s predecessor, started a preliminary investigation into Israeli war crimes – both Israel’s repeated attacks on Gaza and its building of illegal Jewish settlements in the West Bank and East Jerusalem to ethnically cleanse Palestinians from their lands.
Bensouda found herself and her family threatened, and her husband blackmailed. The head of Israel’s Mossad spy agency, Yossi Cohen, became personally involved in the campaign of intimidation. An official briefed on Cohen’s behaviour likened it to “stalking”. The Mossad chief ambushed Bensouda on at least one occasion in an attempt to recruit her to Israel’s side.
Cohen, who is known to be close to Netanyahu, reportedly told her: "You should help us and let us take care of you. You don’t want to be getting into things that could compromise your security or that of your family."
Israel has also been running a sophisticated spying operation on the court, hacking its database to read emails and documents. It has tried to recruit ICC staff to spy on the court from within. There are suspicions at the ICC that Israel has been successful.
Because Israel oversees access to the occupied territories, it has been able to ban ICC officials from investigating its war crimes directly. That has meant, given its control of the telecommunications systems in the territories, that it has been able to monitor all conversations between the ICC and Palestinians reporting atrocities.
As a result, Israel has sought to close down Palestinian legal and human rights groups by designating them as “terrorist organisations”.
The surveillance of the ICC has continued during Khan’s tenure – and it is the reason Israel knew the arrest warrants were coming. According to sources that spoke to the Guardian and 972 website, the court came under “tremendous pressure from the United States” not to proceed with the warrants.
Khan has pointed out that interference in the court’s activities is a criminal offence. More publicly, a group of senior US Republican senators sent a threatening letter to Khan: “Target Israel and we will target you.”
Khan himself has noted that he has faced a campaign of intimidation and has warned that, if the interference continues, “my office will not hesitate to act”.
The question is how much of this is bravado, and how much is it affecting Khan and the ICC’s judges, making them wary of pursuing their investigation, expediting it or expanding it to more Israeli war crimes suspects.
Legal noose
Despite the intimidation, the legal noose is quickly tightening around Israel’s neck. It has become impossible for the world’s highest judicial authorities to ignore Israel’s eight-month slaughter in Gaza and near-complete destruction of its infrastructure, from schools and hospitals to aid compounds and bakeries.
Many tens of thousands of Palestinian children have been killed, maimed and orphaned in the rampage, and hundreds of thousands more are being gradually starved to death by Israel’s aid blockade.
The role of the World Court and the War Crimes Court are precisely to halt atrocities and genocides before it is too late.
There is an obligation on the world’s most powerful states - especially the world’s superpower-in-chief, the United States, which so often claims the status of “global policeman” - to help enforce such rulings.
Should Israel continue to ignore the ICJ’s demand that it end its attack on Rafah, as seems certain, the UN Security Council would be expected to pass a resolution to enforce the decision.
That could range from, at a minimum, an arms embargo and economic sanctions on Israel to imposing no-fly zones over Gaza or even sending in a UN peacekeeping force.
Washington has shown it can act when it wishes to. Even though the US is one of a minority of states not a party to the Rome Statute, it has vigorously supported the arrest warrant issued by the ICC against Russian leader Vladimir Putin in 2023.
The US and its allies have imposed economic sanctions on Moscow, and supplied Ukraine with endless weapons to fight off the Russian invasion. There is evidence, too, that the US has been waging covert military operations targeting Russia, most likely including blowing up the Nordstream pipelines supplying Russian gas to Europe.
The Biden administration has orchestrated the seizing of Russian state assets, as well as those of wealthy Russians, and it has encouraged a cultural and sporting boycott.
It is proposing to do none of that in the case of Israel.
Divisions in Europe
It is not just that the US is missing in action as Israel advances its genocidal goals in Gaza. Washington is actively aiding and abetting the genocide, by supplying Israel with bombs, by cutting funding to UN aid agencies that are the main lifeline for Gaza’s population, by sharing intelligence with Israel and by refusing to use its plentiful leverage over Israel to stop the slaughter.
And the widespread assumption is that the US will veto any Security Council resolution against Israel.
According to two former ICC officials who spoke to the Guardian and 972 website, senior Israeli officials have expressly stated that Israel and the US are working together to stymie the court’s work.
Washington’s contempt for the world’s highest judicial authorities is so flagrant that it is even starting to fray relations with Europe.
The EU’s foreign policy chief, Josep Borrell, has thrown his weight behind the ICC and called for any ruling against Netanyahu and Gallant to be respected.
Meanwhile, on Monday, French President Emmanuel Macron expressed his outrage over Israel’s attacks on Rafah and called for them to stop immediately.
Three European states – Spain, Ireland and Norway – announced last week that they were joining more than 140 other countries, including eight from the 27-member European Union, in recognising Palestine as a state.
The coordination between Spain, Ireland and Norway was presumably designed to attenuate the inevitable backlash provoked by defying Washington’s wishes.
Among the falsehoods promoted by the US and Israel is the claim that the ICC has no jurisdiction over Israel’s military actions in Gaza because neither of them have recognised Palestine as a state.
But Palestine became a state party to the ICC way back in 2015. And, as Spain, Ireland and Norway have highlighted, it is now recognised even by western states usually submissive to the US-imposed “rules-based order”.
Another deception promoted by Israel and the US - a more revealing one – is the claim that the ICC lacks jurisdiction because Israel, like the US, has not ratified the Rome Statute.
Neither believes international law - the legal foundation constructed in the aftermath of the Second World War to stop future Holocausts – applies to them. Which is yet more reason to discount their assurances that there is no genocide in Gaza.
But in any case, the argument is entirely hollow: Palestine is a party to the ICC, and the Rome Statute is there to protect its signatories from attack. It is only violent bullies like the US and Israel who have no need for the ICC.
Might makes right
Both the ICJ and the ICC are fully aware of the dangers of taking on Israel – which is why, despite the dissembling complaints from the US and Israel, each court is treading so slowly and cautiously in dealing with Israeli atrocities.
Pick at the Israeli thread of war crimes in Gaza, and the entire cloth of atrocities around the world committed and promoted by the US and its closest allies starts to unravel.
The unspoken truth is that the "Shock and Awe" bombing campaign and years of brutal occupation of Iraq by US and British troops, and the even lengthier and equally bloody occupation of Afghanistan, eviscerated the legal constraints that would have made it harder for Putin to invade Ukraine and for Israel to put into practice the erasure of the Palestinian people it has dreamed of for so long.
It is Washington that tore up the rulebook of international law and elevated above it a self-serving “rules-based order” in which the only meaningful rule is might makes right.
Faced with that stark axiom, Moscow had good reason both to take advantage of Washington’s acts of vandalism against international law to advance its own strategic regional aims and to suspect that the relentless military expansion of a US-led Nato towards its borders did not have Russia’s best interests at heart.
Now, as Netanyahu and Gallant risk being put in the dock at The Hague, Washington is finally finding its resolve to act. Not to stop genocide. But to offer Israel protection to carry on.
War crimes overlooked
For that reason, Khan did everything he could last week to insulate himself from criticism as he announced that he wants Netanyahu and Gallant arrested.
First, he made sure to weigh the accusations more heavily against Hamas than Israel. He is seeking three Hamas leaders against two Israelis.
In his indictment, he implicated both the Hamas political and military wings in war crimes and crimes against humanity over their one-day attack on Israel on 7 October and their hostage-taking.
By contrast, Khan completely ignored the Israeli military’s role over the past eight months, even though it has been carrying out Netanyahu and Gallant’s wishes to the letter.
Notably too, Khan charged the head of Hamas’ political bureau, Ismail Haniyeh, who is based in Qatar, not Gaza. All the evidence, however, is that he had no foreknowledge of the attack on 7 October and certainly no operational involvement.
Further presenting Hamas in a worse light, Khan levelled more indictments against its leaders than Israel’s.
That included a charge rooted in a prominent western establishment narrative: that Israeli hostages held in Gaza have faced systematic sexual assault and torture. There appears to be little persuasive evidence for this allegation at this stage, unless Khan has access to facts no one else appears to know about.
By contrast, there is plenty of objective evidence of Palestinians being kidnapped off the streets of Gaza and the occupied West Bank and subjected to sexual assault and torture in Israeli prisons.
That, however, was not on the charge sheet against Netanyahu or Gallant.
Khan also ignored plenty of other Israeli war crimes that would be easy to prove, such as the destruction of hospitals and United Nations facilities, the targeted killing of large numbers of aid workers and journalists, and the fact that 70 percent of Gaza’s housing stock has been made uninhabitable by Israel’s US-supplied bombs.
Taking on Goliath
In making the case against Israel, Khan clearly knew he was taking on a Goliath, given Israel’s stalwart backing from the US. He had even recruited a panel of legal experts to give its blessing, in the hope that might offer some protection from reprisal.
The panel, which unanimously endorsed the indictments against Israel and Hamas, included legal experts like Amal Clooney, the nearest the human rights community has to a legal superstar. But it also included Theodor Meron, a former legal authority in the Israeli government’s foreign ministry.
In an exclusive interview with CNN’s Christiane Amanpour, explaining his reasoning, Khan seemed keen to preempt the coming attacks. He noted that an unnamed senior US politician had already tried to deter him from indicting Israeli leaders. The prosecutor suggested that other threats were being made behind the scenes.
The ICC, he was told, was "built for Africa and thugs like Putin" – a criticism of the court that echoed complaints long levelled against it by the Global South.
In Washington, the ICC is expected to serve as nothing more than another institutional tool of US imperialism. It is not there to uphold international law dispassionately. It is there to enforce a US 'rules-based order' in which the US and its allies can do no wrong, even when they are committing atrocities or a genocide.
The predictably skewed framing of the interview by Amanpour – that Khan needed to explain and justify at length each of the charges he laid against Netanyahu and Gallant but that the charges against the Hamas leaders were self-evident – was one clue as to what the court is up against.
The ICC prosecutor made clear that he understands all too well what is at stake if the ICC and ICJ turn a blind eye to the Gaza genocide, as Israel and the US want. He told Amanpour: "If we don't apply the law equally, we're going to disintegrate as a species."
The uncomfortable truth is that such disintegration, in a nuclear age, may be further advanced than any of us cares to acknowledge.
The US and its favourite client state give no sign of being willing to submit to international law. Like Samson, they would prefer to bring the house down than respect the long-established rules of war.
The initial victims are the people of Gaza. But in a world without laws, where might alone makes right, all of us will ultimately be the losers.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.