ICC must confront Western impunity in Israel’s war on Gaza

International Criminal Court (ICC) Prosecutor Karim Khan finally intervened in Israel’s war on Gaza on May 20th to warn that the court intends to issue warrants for the arrest of Israeli prime minister Binyamin Netanyahu and defence minister Yoav Gallant as well as Hamas’s Gaza commanders Yahya Sinwar and Mohammad Deif and politburo chief Ismail Haniyeh. All five are charged with crimes against humanity and war crimes.

The main accusation made by Khan and his team against the two Israelis is that they have used “starvation as a weapon of war” by denying Gazans food, water and fuel. Gallant made no secret of Israel’s intention when on October 9th, 2023, he announced, “I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed.”

US pressure initially compelled Israel to agree to allow 100 lorry loads of aid to enter Gaza via the Rafah terminal with Egypt although before the war 500 lorry loads of aid and consumer goods had been delivered to Gaza through the Israeli Kerem Abu Salem crossing in southern Gaza. The number has increased over time and Kerem Abu Salem and Rafah crossings were partially operational, but deliveries have been slow and fitful due to obstruction from Israel. Rafah is now closed and Kerem Abu Salem risky due to Israel’s military offensive on Rafah. A new crossing at Erez west in the famine-ridden north can handle limited traffic.

While ICJ judges still have to authorise warrants, legal experts argue that Khan would not have made this announcement unless this will happen. He has been criticised as this is the first time he has announced his decision before the warrants have been formally issued. Although his announcement was expected for weeks, it created a furore when he went ahead, detailing the grounds for indicting the men because levelling accusations at the two Israelis has been explosive. Until Khan took this step, Israel’s rulers had enjoyed impunity and had been immune from prosecution although they had, legal experts argue, committed war crimes over many decades.

Cautious Khan provided political cover for his initiative by recruiting six international legal experts, including high profile Amal Clooney, to advise his team. Once the warrants are in place, the 124 countries which are party to the Rome statute which created the ICC will be obliged to arrest the five men if they enter these states territory. This will not affect Sinwar or Deif but could limit the travel of Netanyahu and Gallant. Among the signatories of the Rome Statute are 25 European states, including Germany, France, Austria, Ireland, Holland, Italy, Spain, Sweden, and Britain as well as Canada, New Zealand, and Australia.

Khan has been criticised for failing to tackle Israel’s leaders earlier for its war on Gaza while he was ready to take action after Russia invaded Ukraine against Russian President Vladimir Putin and Russian Children’s Rights commissioner Maria Lvova-Belova. They were charged with the unlawful deportation of Ukrainian children to Russia during the war. The warrants, issued a year after the conflict began, were rejected by Putin but commended by the US and Western governments which have armed and funded Ukraine’s war effort. 

As South Africa is among the 33 signatories from that continent, Putin was asked not to attend a 2023 summit of the BRICS grouping Brazil, Russia, India, China and South Africa.

The Russian bombing on May 25th of a DYI (Do It Yourself) store which killed 18 and wounded 48 in a Ukrainian supermarket complex in the city of Kharkiv demonstrates just how different the two situations are. Ukrainians still have supermarkets, money, homes, jobs, food, and gardens to tend. Gazans do not.

There is no comparison between the Ukraine war to the devastation and death Israel has wreaked on Gaza.

According to the most recent data on Ukraine there have been 10,582 deaths and 19,875 wounded, 4 million internally displaced, 1.9 million refugees, and 14 million in need out of 38 million. Ukrainian refugees have been welcomed and subsidised if they settle in European Union countries.

Gaza is an Israeli isolated, besieged and blockaded strip of land along the Medi terranean coast. Gaza’s 2.3 million Palestinians cannot leave. Some 1.7 million are refugees driven from their homes during Israel’s 1948 war of establishment. Refugees live in UNRWA camps and rely on the UN for food, shelter, education, healthcare and employment. Eighty-one per cent of camp dwellers lives below the poverty line. Unemployment is over 50 per cent.

Since Israel launched its war on October 7th, Gaza has become a wasteland. The World Bank reports the level of destruction is “unprecedented:” 62 per cent of homes have been destroyed, rendering 1 million homeless; 19 per cent of water, health, and education infrastructure have been destroyed; and nine per cent of commercial and industrial buildings have been levelled. The Bank estimated it would cost more than $18 billion to rebuild. This sum rises day by day.

This is why the ICC and the International Court of Justice (ICJ), which called on Israel to halt its Gaza offensive a week ago, should have intervened long before now. After announcing his decision to issue warrants for Netanyahu and Gallant, ICC Prosecutor Khan spoke of having to deal with Israel’s Western-granted impunity while defending the independence of the court. In an interview with CNN’s Christiane Amanpour. Khan said the Gaza situation “lives on the San Andreas Fault of international politics and strategic interests. And, of course, I’ve had some elected leaders speak to me who were ...very blunt”. He said that these leaders told him that,“ This court [the ICC] is built for Africa and for thugs like [Vladimir] Putin,” rather than western leaders, including Israeli figures. Khan insisted, “Nobody is above the law.”