Fri Jul 12, 2024
July 12, 2024

ICC Inches Forward on Gaza but Reveals Shortcomings


On May 20, the prosecutor of the International Criminal Court case concerning Israel’s invasion of Gaza and genocide against Palestinians announced that he would be seeking arrest warrants for leaders of both the Israeli state and Hamas. In doing so, the court slowly proceeds towards decreeing a judgment, while indulging in irresponsible “both sides” illusions and liberal platitudes.

The warrants for the arrest of Israeli leaders have been welcomed by the Gaza Media Office (which also criticized the warrants against Hamas leaders) and human rights groups such as B’Tselem and Human Rights Watch. UN human rights officials called this a “historic day” and opined that the charges are “likely to stick.” The Palestinian rights groups Al-Haq, Al-Mezan, and the Palestinian Centre for Human Rights called the ruling a “crucial step” but criticized the omission of the charge of genocide against Israel despite abundant recorded statements of genocidal intent by Israeli politicians and soldiers.

PLO executive committee member Wasel Abu Yousef had a more muted response, simply reiterating that Palestinians have the right to defend themselves and that it is the responsibility of the ICC to investigate acts of genocide.

The warrants represent an unusual shift in priorities for the ICC, which historically has issued warrants generally aligning with NATO’s interests, indicting individuals from the Democratic Republic of the Congo, Uganda, Sudan, the Central African Republic, Libya, Mali, and Russia. In particular, the cases against Russian government officials in the wake of its invasion of Ukraine were noted for how quickly they were filed and processed. However, the massive outcry in defense of Palestine on a global scale has created a moral crisis for the institutions of the liberal international order, who now are finding themselves forced to denounce Israel’s crimes in order to maintain their own legitimacy.

What actually happened?

Requesting a warrant of arrest is only an initial, provisional step. It is also a process that occurs in parallel and separately from the International Court of Justice case brought by South Africa earlier this year. Unlike the ICJ, which is a formal body of the UN that is tasked with generally hearing disputes between countries, the ICC was convened by a 1998 United Nations General Assembly statute, and is specifically intended to consider cases of war crimes, genocide, crimes against humanity, and crimes of aggression.

Following the prosecutor’s request, it will now be considered by the judges of the ICC. Officially, the court at this time is supposed to evaluate whether it has jurisdiction to issue the warrants, and whether there are reasonable grounds to believe the charges brought by the prosecution. This process has no deadline and has historically taken between one month and several months in past ICC cases.

The lumbering nature of this process reaches new levels of absurdity when we recall that, in the ICJ case brought by South Africa against Israel, the ICJ determined that charges equivalent to those now levied by the ICC are plausible. The ICJ, for its part, has done little publicly since demanding that Israel “ensure its troops commit no genocidal acts against Palestinians” in January and that it “take all the necessary and effective action to ensure basic food supplies arrive” in March.

All of this is occurring while in the background Israel conducts a military operation that has killed Palestinians every day at a pace faster than the Srebrenica Massacre in Bosnia in 1995, over four times the duration, and with every indication that the most brutal violence is still to come, with the prospect of famine and an intensified Israeli military assault both clearly approaching in the near future.

In a certain respect, the fact that a case is being put forward at all right now is surprising. Prosecutor Karim Khan’s tenure up until now has followed the lead of British foreign policy priorities, and he has generally deprioritized Palestine in terms of the court’s agenda, budget, and staffing. The warrant request is thus in itself a sign of the deterioration of Israel’s diplomatic standing in the eyes of the Western bourgeoisie, although the extent of this fall from grace is undercut by the governments of Britain and U.S. aggressively denouncing the prosecutor’s decision. (The French government, however, has welcomed the prosecutor’s action as the appropriate response to Israel’s having ignored prior warnings, even as it carries out its own colonial violence against Kanaky).

If the warrants are issued, countries that recognize the ICC’s authority will be legally compelled to arrest the indicted. Even for countries that have signed treaties recognizing the ICC’s authority, there is no actual mechanism that forces them to carry out arrests. In fact, even South Africa declined to arrest Vladimir Putin in compliance with an ICC warrant issued over Russia’s invasion of Ukraine and crimes against its population. The entirety of the process is thus largely symbolic, although it would likely impact Israel’s diplomatic standing somewhat if it reaches its conclusion, and is an indicator of how Israel’s actions have abandoned even the minimal moral constraints of bourgeois governance.

For this reason, Joe Biden, pro-Israel war hawks in Congress, and Israeli politicians have harshly denounced the rulings, feigning moral outrage at the mere idea that 35,000+ Palestinian dead could be entitled to justice commensurate to 1200 Israelis killed in the context of a settler-colonial apartheid. For the imperialists and their cronies, any suggestion that they cannot behave with violent impunity must be attacked. Biden and other U.S. politicians, for their part, further understand that anything that Israel’s government is guilty of, they are guilty of doing as well.

False equivalence between the oppressor and the resistance

The limitations of the ICC process are further exposed by the gross moral equivalence that it makes in issuing arrest warrants not just for the Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant but also for Hamas leader, Yahya Sinwar, its military commander, Mohammed Diab Ibrahim al-Masri, and most egregiously, the leader of its political bureau, Ismail Haniyeh. It is noteworthy that, were these arrests to be even-handedly carried out, this would remove all of Hamas’s publicly-recognizable leadership, but only a fraction of the ruling government in Israel (let alone opposition and other Israeli politicians who have equally eagerly supported both the current war and apartheid writ large).

This moral equivalence between the leaders of a heavily militarized, imperialist-backed state and the leaders of a beleaguered resistance movement is an absurd misrepresentation of the war and genocide occurring in Palestine, but also very typical of the liberal legal logic employed by the ICC and other international bourgeois institutions.

Bourgeois law has bourgeois priorities. It is not designed to render justice, but to assign blame that can be redressed with payments, an arrangement that is highly beneficial for the efficient conduct of business transactions, but which is not particularly desirable for anyone else. Further, it maintains the false pretense that every individual is equal before the law, even when these same individuals have completely unequal access to resources and power under capitalism. This is a moral equivalence that creates constant injustice even in the day-to-day, mundane court proceedings of capitalist society, but it is expanded to truly absurd proportions under conditions of prolonged apartheid, military occupation and genocide.

As Trotsky put it in “Their Morals and Ours,” there can be no equivalence between “a slave-owner who through cunning and violence shackles a slave in chains, and a slave who through cunning or violence breaks the chains”—but this is precisely the equivalence that the ICC and other liberal courts uphold.

After the genocide has been stopped, after apartheid has fallen, there can be truth and reconciliation processes that investigate violent excesses committed by the resistance forces. But it is impossible to engage in such a process while Palestinians are fighting for their lives against the Israeli military boot that is crushing them.

Further, any such process would need to consider the context of oppression and dispossession that Palestinians are living under: Nearly every single member of the armed resistance in Gaza has spent their entire life under a brutal military siege that has killed and continues to kill their relatives and friends, and that openly threatens to wipe out their entire society. A large portion of them have passed through Israeli prisons, where torture, including sexual abuse, is routine. Meanwhile, nearly every Jewish Israeli adult has served in its military and thus directly participated in the armed body that carries out violent oppression against Palestinians. A court that does not consider these facts as decisive factors in its deliberations does not mete out justice, but instead stands ready to punish those who try to defend themselves against indefensible cruelties.

Only the masses can bring about justice

If the ICC and ICJ will not protect Palestine, where does that leave us? Ultimately, it is only the broad mobilization of workers and the oppressed that can force a political change that holds the currently powerful accountable. We will not succeed by crafting legal arguments or appealing to courts that leisurely take their time in Europe while tens of thousands Palestinians are killed, millions face famine, and even more wait under apartheid inside Israel’s 1948 borders, under military occupation in the West Bank, or in refugee camps in Lebanon and Jordan, wondering when Israel will come to kill them as well. But this does not mean we are powerless.

The keys to victory and liberation for Palestine are in the history of its own movement—mass mobilizations and general strikes by Palestinians everywhere they find themselves, just as in the First Intifada, all while the armed resistance continues its legitimate self-defense against the Israeli occupation. The keys to victory are also in the brewing mobilizations and strikes across the Arab world, especially against the hated, U.S.-backed regimes in Egypt and Jordan, which are vital partners in the defense of Israel’s apartheid. And they are also in the mass movements and courageous protests of the rest of the world, where every week, more and more students and workers denounce their schools’, their employers’ and their governments’ complicity in supporting Israel’s crimes.

By harnessing these forces, growing the movements, building and defending their politics in democratic assemblies that not only coordinate effective actions but also educate everyone present and prepare them to fight for liberation, we will prepare the forces that can take the streets, organize decisive strikes, and end apartheid once and for all.

• End all U.S. aid to Israel!

• Stop Israel’s genocidal invasion!

• Biden, Trump, Netanyahu, Smotrich, Gantz, Gallant, and the rest of the politicians: All of them must pay for their crimes against Palestinians!

• Down with Israeli apartheid!

• For a free, democratic non-sectarian Palestine from the river to the sea!

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