Is the ICC and international law a sham?
On 2 December it was reported in Haaretz1 that the chief prosecutor for the International Criminal Court (ICC), Karim Kahn, had reason to believe that Hamas committed war crimes and will be happy to cooperate with Israel in investigating the events of October 7, and that he will not be deterred from conducting an investigation, even if Israel maintains its current policy of not recognizing the court’s jurisdiction and not cooperating with it.
So, what do we make of that? First of all, I would like to point out the asymmetry of this action, then I would like to question its legitimacy and even its moral justification.
On 7 October 2023, members of Hamas committed the heinous crime of invading Israeli territory, murdering over 1,400 people and capturing approximately 400 others. From on or about 12 October 2023 to 24 November Israel retaliated by cutting off electricity, food, water and fuel supplies to all of Gaza2 and conducting air and ground strikes killing over 15,000 people (70% being women and children34. Meanwhile, the history of Israeli/Palestinian conflict and prior UN condemnation of Israeli settlement of occupied Palestinian territories5 and Israeli subjugation of Palestinian citizens is being entirely ignored. But Hamas is the only party the ICC chief prosecutor is willing to investigate. So, why is that, exactly who is Karim Khan, and what is his agenda?
According to Wikipedia, Karim Asad Ahmad Khan, KC (born 30 March 1970) is a British lawyer specializing in international criminal law and international human rights law. He was appointed as Prosecutor of the International Criminal Court in 2021. Now, Britain is one of the chief proponents for establishing Israel as a nation for Jews in Palestine and its support of Israel has not wavered since the very beginning with the Balfour declaration in 1917. Bear in mind also, that at the end of WWI when the Ottoman Empire was defeated, the area of Palestine was taken by the British and declared a British mandate and ruled by Britain until 1948 when, instigated by Britain and supported by the U.S., the UN officially declared Israel a sovereign nation6. Clearly, the British government has a vested interest in Israel. Can Karim Khan overcome his British bias for Israelis? How could the chief prosecutor for the ICC, who is an agent of the British government, be considered a neutral party in what would appear to be a “kangaroo court”?
As for the legitimacy of this investigation, we should challenge its legitimacy and that of international law itself. Where does it come from, how is it created, how is it administered and how is it enforced?
The known history of international law dates back to the city states of Lagash and Umma (approximately 3100 BCE).7 What was then and continues to be known as international law consists simply of treaties (agreements or contracts) between nations that establish normative guidelines and a common conceptual framework for states across a broad range of domains, including war and diplomacy, economic relations, and human rights. Like all agreements or contracts, treaties are only binding on the signatories. The key point on which international law rests is that it operates upon the consent of participating nations because no governing body exists to explicitly enforce international agreements8.
There are several organizations involved in international law. The principle body involved is the United Nations (UN), where all but two of the 195 nations are members. The “law” itself consists of the collection of treaties that have been agreed upon by the member nations. “Enforcement” is the purview of the International Court of Justice (ICJ, sometimes called the world court). Its primary function is to settle disputes between states in accordance with international law (treaties) and give advisory opinions on international legal issues; but it has no real power to enforce its decisions and relies entirely on the cooperation of the governments involved. Then, there is the UN Security Council whose principle function is to secure peace within or between nations with forces comprised of member nations’ armed forces. But like the ICJ, it has no police or military force of its own and must rely entirely on the cooperation of participating governments.
In 2002, the ICC was establish Rome Statute of the International Criminal Court with the authority to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity and war crimes. But like international law it has no police or military to enforce its rulings and rests entirely on the cooperation of participating governments. At this point, it is important to note that only 123 out of the 195 governments of the world have signed the Rome treaty and are member nations. Among those that are not signatories to the Rome Treaty are the U.S., Russia, China, India and Israel (all of which, by the way, are nuclear armed states).
Let’s consider the recent history of international law and its enforcement. In October 2001, the U.S. invaded Afghanistan in reprisal for its harboring Osama Bin Laden who orchestrated the attack on the U.S. on 11 September 2001. In March, 2003, the U.S. invaded (and later occupied) Iraq on the unfounded suspicion of possessing weapons of mass destruction and cooperating with Al Qeada terrorists. Subsequent attacks in Syria, Yemen, and Pakistan and other countries have been conducted as part of the U.S. “War on Terror”. In these wars, over 940,000 people have perished directly or indirectly as a result of U.S. actions9. In the conduct of these wars, the U.S. committed numerous crimes (according to Article 8 of the Rome Statute of the ICC) including a war of aggression, crimes against humanity and war crimes10. But no one was prosecuted or even investigated by the ICC11. No penalties were imposed on any person or nation. Since 1948, Israel has continuously evicted Palestinians from their homes and built settlements in occupied Palestinian territories in violation of the law; yet no person or government has been prosecuted or penalized. In February 2022, Russia invaded Ukraine, and the UN, at U.S. insistence, imposed sanctions against Russia which were honored by some nations but not others. Then, the U.S., not a member of the ICC, coerced the ICC to issue an arrest warrant for Vladimir Putin12, also not a member of the ICC.
For a law to be a law, it must be consistent, it must apply to all, and it must be enforced. When viewed in the context of history, the ICC, UN, UNSC and ICJ all appear to be nothing more than tools by which more powerful nations capriciously manipulate lesser nations. In the present case, it is the U.S. Britain and Israel using the ICC to prosecute Hamas and justify Israel’s heinous treatment of Palestinians without consideration of any underlying cause or the history of Israeli colonization of Palestine.
So what is that, if not a sham13?
1 Haaretz: ICC Prosecutor in Israel for first-ever visit
2 Bear in mind, Gaza is a very small, very crowded and totally isolated piece of land with only one port of entry not controlled by Israel, viz., Rafah in the Sinai which is controlled by Egypt.
3 As reported by the Health Ministry in Gaza
4 Since the ceasefire began on 24 November, Israel has allowed food and fuel to enter Gaza from Egypt through Rafah, but no services from Israel have been restored. The ceasefire ended and the fighting resumed on 1 December.
5 UN Security Council Resolution 2334
6 Interestingly, according to the Jewish Virtual Library, Jews constituted 80% of the population upon its creation in 1948, but in 1947, Jews constituted only 32% constituted only 32% as over a million Palestinians fled the territory.
8 According to the Legal Information Institute:
“International law is a set of rules and principles governing the relations and conduct of sovereign states with each other, as well as with international organizations and individuals. Issues that fall under international law include trade, human rights, diplomacy, environmental preservation, and war crimes. Different international bodies, such as the United Nations and World Trade Organization, are responsible for overseeing these issues. Generally speaking, the goal of international law is to promote peace and order between nations.
International law largely operates upon the consent of participating nations because no governing body exists to explicitly enforce international agreements. The Charter of the United Nations is the document that expounds upon international law, but the United Nations cannot enforce those laws directly in the same way that a sovereign state can enforce its laws domestically. Additionally, international law has no bearing on domestically enforceable law recognized by courts in the United States, barring by Congress that incorporates international legal principles into domestic law. Although international law is not strictly enforceable upon nations or other international actors, treaties and the possibility of economic sanctions work to create heavy incentives for abiding by international law.”
9 Costs of War Project, Watson Institute, Brown University
10 Examples of war crimes committed by U.S. forces in Afghanistan and Iraq include:
-
- Torture or inhuman treatment, including biological experiments;
- Wilfully causing great suffering, or serious injury to body or health;
- Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
- Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
- Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
- The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory
11 In this case where the U.S. is not a signatory to the Rome Treaty, the ICC would have no jurisdiction unless the UNSC extended the ICC’s authority to include the U.S. (But the U.S. can unilaterally veto any resolution by the UNSC)
12 It is highly unlikely that Mr. Putin will ever be arrested.
13 Definition: Sham – noun