The International Criminal Court, Israel, and Palestine
Karim Khan applied for indictments against Israeli and Palestinian political leadership. The ICC’s history emphasizes a simultaneous significance and insignificance in these indictments.
If there has ever been a fraud bigger than any other over the course of Post-World War II politics and international affairs, it is the international legal system. And that is not because of the principles behind it or the concept of international law. The principles and concept of international law are very well-intentioned and must be defended. But the reason why the international legal system is such a fraud is because those who have the most power in enforcing international law are the ones who violate it the most.
Three of the five permanent member seats on the United Nations Security Council are held by some of the most violent empires in recorded human history: the United States, Britain, and France. The Security Council grants permanent members unlimited vetoes and the United States has used its veto power to strike down three ceasefire proposals in Gaza and to deny the State of Palestine full membership at the United Nations. And every time, there are no consequences for the leadership in the United States, Britain, France, or any nation in the Western bloc.
More often than not, the international legal system and particularly the International Criminal Court (ICC) tends to target leaders in the Global South and official enemies and adversaries of Western nations, often times on false or politically-motivated charges. That’s what made this new application for indictments by ICC Chief Prosecutor Karim Khan in regards to the Israel-Gaza War and the genocide perpetrated by Israel against the Palestinian people all the more surprising and at the same time all the more unsurprising.
On May 20th, Khan issued a statement announcing that he was applying for arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Israeli Defense Minister Yoav Gallant on charges of “war crimes and crimes against humanity committed on the territory of the State of Palestine (in the Gaza strip) from at least 8 October 2023.” Khan also announced he was applying for arrest warrants against Yahya Sinwar who is the Leader of Hamas in the Gaza Strip, Ismail Haniyeh who is the Chairman of the Hamas Political Bureau, and Mohammed Deif who is the Chief of Staff of the Izz ad-Din al-Qassam Brigades which is Hamas’ military wing on charges of “war crimes and crimes against humanity committed on the territory of Israel and the State of Palestine (in the Gaza strip) from at least 7 October 2023.”
The war crimes and crimes against humanity charges against Netanyahu and Gallant are very straightforward and are listed as follows:
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).
Khan, in his application stated the following in regards to both the war crimes charges and the crimes against humanity charges against Israeli leadership:
“My Office submits that the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas (together with other Palestinian Armed Groups) running in parallel. We submit that the crimes against humanity charged were committed as part of a widespread and systematic attack against the Palestinian civilian population pursuant to State policy. These crimes, in our assessment, continue to this day.”
However, Khan did not charge Netanyahu or Gallant with the crime of aggression. It is defined in the Rome Statute, which is the ICC’s founding treaty as “the use of armed force by a State against the sovereignty, integrity or independence of another State.” For the purposes of this analysis, we will set aside issues regarding the legitimacy of Israel’s existence and we will instead look at the Israeli-Palestinian Conflict from a post-1967 war international legal perspective.
The United Nations recognizes the West Bank, East Jerusalem, and the Gaza Strip as the Palestinian Territories and recognizes the Golan Heights as Syrian Territory. All of these territories are currently under a violent military occupation by Israel and have been so ever since the June 1967 war. Israel also occupied the Sinai Peninsula in Egypt between the end of the 1967 War and the Camp David Accords of 1979. These actions, as well as bombardments by Israel in places like Gaza, the West Bank, Lebanon, and Syria would warrant charges for crimes of aggression as defined in the Rome Statute.
Khan also did not charge Netanyahu or Gallant with the crime of genocide. This is defined in the Rome Statute as “the specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members or by other means: causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; or forcibly transferring children of the group to another group.”
Interracial marriage between Israelis and Palestinians is illegal in Israel as a means to prevent mixed-race births. Palestinian political prisoners are often held in indefinite detention without charges due to the “Unlawful Combatants Law” which allows Israeli security forces to detain Palestinians in the West Bank, East Jerusalem, and Gaza on mere suspicions and without formal judicial review. Palestinians living under the Israeli military occupation have no political, civil, or religious rights and are often forcibly removed from their homes and their homes destroyed in the West Bank, East Jerusalem, and Gaza in order to make way for Israeli settlements. Palestinians that are evicted usually are expelled and become refugees in places like Lebanon, Jordan, Syria, and Egypt. Palestinians have been consistently expelled from their land by the Israeli government since the 1948 Nakba of Palestine, in which 750,000 Palestinians were forcibly removed from their homes and expelled from the newly created Israeli state.
In the nearly eight months since the current Israel-Gaza war began, Israel has murdered over 36,000 civilians in Gaza and in May launched a military invasion and several bombings in the Southern Gaza city of Rafah where an estimated 1.4 million Palestinian refugees were sheltering prior to the Israeli invasion. Israel has imposed a blockade on food, water, fuel, electricity, and other essential supplies from entering Gaza, essentially starving the population of Gaza to death. 3,500 Palestinian children are currently at risk of starving to death due to this blockade. Israel has also enforced a joint blockade alongside Egypt on Gaza since 2007, preventing essential supplies from entering Gaza and preventing Palestinians from entering and exiting Gaza, essentially confining the Palestinian people in an open-air concentration camp.
The government in South Africa had filed an 84-page long application to the International Court of Justice (ICJ) suing the State of Israel under the Genocide Convention on 29 December 2023 which detailed the atrocities carried out by the IDF in Gaza, genocidal intent by Israeli leadership, and Israel’s treatment of the Palestinians in a broader historical context, quoting several UN reports in the process that document Israel’s vicious, cruel, and incredibly inhumane treatment of the Palestinians over the course of several decades since the June 1967 war. Beginning on Page 59, South Africa lists out a series of statements that goes on for 8 pages by Israeli government and military officials that show clear genocidal intent against the Palestinians in Gaza. These statements by Israeli officials were shockingly similar to statements made by the Nazis about Jews and other persecuted groups in Germany and Europe in the 1930s and during World War II.
On 26 January 2024, the ICJ issued a preliminary ruling which stated that Israel had violated the Genocide Convention and ordered Israel to take measures to prevent violations of the Genocide Convention by the government and IDF, to prevent and punish public incitement to commit genocide against the Palestinians, to ensure the Palestinians recieve basic humanitarian assistance, essentially ordering Israel to lift the blockade on food, water, fuel, and electricity, to preserve evidence of violations of the Genocide Convention, and to provide a report within a month on steps it has taken to prevent genocide. Israel has completely refused to comply with the ICJ’s order. Israel’s actions all constitute the definition of genocide as characterized in the Rome Statute.
However, despite Khan’s decision not to charge Israeli leadership with the crimes of aggression and genocide, the indictments against Netanyahu and Gallant are historic because it is the first time that the International Criminal Court has charged the leadership of an official US ally or Western bloc nation since the establishment of the International Legal System. No official from the US and British governments has faced charges for the war crimes and crimes against humanity committed in Vietnam or Iraq. No official from the French government faced charges for war crimes or crimes against humanity in Algeria. And that’s just barely scratching the surface of war crimes and crimes against humanity committed by Western governments since the end of World War II, none of which have ever been subject to prosecution.
In fact, prior to the Iraq War, the US Congress passed the Hague Invasion Act, which President George W. Bush signed into law in 2002. It would have authorized military force against the Netherlands if any US government or military personel were charged with war crimes and crimes against humanity in connection to the then-upcoming Iraq War which later began in March 2003. It also would have allowed for a withdrawal of U.S. military assistance to any country that had ratified the Rome Statute.
Khan, himself seemed to have an honest moment in a recent interview with CNN following the indictments, in which he made some shocking but unsurprising admissions: several Western sources including elected officials in the United States threatened Khan, his family, and ICC employees with possible sanctions and barred entry to the United States if he issued charges against Netanyahu, Gallant, and/or any other Israeli officials. Khan himself stated that Western officials openly said to him that the ICC was built for leaders of the Global South and for official adversaries and enemies of the West but not the Western Bloc or any of its allies. However, Khan stated that the ICC has universal international jurisdiction:
“I’ve had some elected leaders speak to me and be very blunt. ‘This court is built for Africa and for thugs like Putin’ was what one senior leader told me. We don’t view it like that. This court is the legacy of Nuremberg. This court is a sad indictment of humanity. This court should be the triumpth of law over power and brute force.”
However, in what looked like to be an attempt to satisfy his allies in London and Washington, Khan also requested a series of indictments against Palestinian political leadership in his application. The charges against Sinwar, Haniyeh, and Deif are as follows:
Extermination as a crime against humanity, contrary to article 7(1)(b) of the Rome Statute;
Murder as a crime against humanity, contrary to article 7(1)(a), and as a war crime, contrary to article 8(2)(c)(i);
Taking hostages as a war crime, contrary to article 8(2)(c)(iii);
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.
Khan, in his application stated the following in regards to both the war crimes charges and the crimes against humanity charges against Palestinian leadership:
“My Office submits that the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas running in parallel. We submit that the crimes against humanity charged were part of a widespread and systematic attack against the civilian population of Israel by Hamas and other armed groups pursuant to organisational policies. Some of these crimes, in our assessment, continue to this day.”
Five of the eight charges against Palestinian leadership are in connection with the hostages. Khan is conveniently ignoring the fact in regards to count 3 that the reason why Hamas took hostages on October 7th was to gain political leverage in forcing Israel to release the Palestinian political prisoners held in Israeli dungeons, including those who are being detained indefinitely without charges or judicial review under the Unlawful Combatants Law. This is a clear mitigating factor in Hamas’ favor. In regards to counts 5, 6, 7, and 8, Khan is also ignoring footage and testimony of released Israeli hostages, who have stated that Hamas fighters were “treated well” and that captives were fed with the “same food they (the Hamas fighters) ate”, “provided all of their needs”, and brought in a doctor to provide medical treatment and assistance.
Counts 1 and 2 are dubious at best and highly malicious at worst. UN General Assembly Resolution 45/130 grants colonized and occupied peoples the right to self-determination by any means necessary which essentially legalizes both armed struggle and Operation Al-Aqsa Flood on October 7th. On top of that point, reports by Israeli media outlets, particularly Haaretz, Mako, and Ynet, and independent subscriber-funded outlets such as The Electronic Intifada, The Grayzone, and Mondoweiss, as well as testimony from surviving residents at various kibbutzim, particularly Kibbutz Be’eri confirmed that IDF tanks had fired on homes.
According to Ali Abunimah and David Sheen at The Electronic Intifada and Max Blumenthal at The Grayzone, a woman who lived in Kibbutz Be’eri named Yasmin Porat described in an interview with Israeli State Radio, “very, very heavy crossfire” and tank shelling by the IDF against homes in Kibbutz Be’eri, killing many Israeli civilians during gun battles with Hamas militants. Referring to the IDF, Porat stated: “They eliminated everyone, including the hostages.”
According to The Grayzone, Haaretz reported that the IDF only regained control of Kibbutz Be’eri after shelling Israeli homes, killing 112 Israeli civilians and i24, sponsored by the Israeli Foreign Affairs Ministry confirmed that an IDF tank crew was responsible for the shellings. Recalling being held captive by Hamas fighters, Porat stated: “They did not abuse us. We were treated very humanely. No one treated us violently.” This further renders Counts 5, 6, 7, and 8 of the indictment against Hamas leadership to be dubious.
Meanwhile, Ynet confirmed that at the Nova Music Festival and other nearby kibbutzes, IDF Apache Helicopters fired on cars knowing that Israeli captives were inside and on unarmed civilians exiting cars and walking on foot through open fields that were in the vicinity of the Israeli-Gaza border. And in an interview with Mako, an Apache pilot stated that he knew there were Israeli captives inside the cars but he chose to fire anyway.
Active-duty military and intelligence personnel accounted for nearly 50% of the confirmed Israeli deaths on October 7th and the IDF’s Gaza Division was immediately overwhelmed by Hamas militants on the morning of October 7th. According to The Grayzone and Mondoweiss, Israel conducted an airstrike against a military and Coordination of Government Activities in the [Occupied] Territories (COGAT) facility inside the Erez Crossing into Gaza, which, according to The Grayzone, serves as the nerve center for Israel’s siege against Gaza.
But perhaps the most fraudulent of charges is Count 4: the rape and sexual assault charges. These claims had been made since the beginning of the current war but they gained the most attention following an article published in The New York Times on 28 December 2023 alleging “a broader pattern of gender-based violence on Oct. 7th” by Hamas. The article was written by Jeffrey Gettleman and the investigation was conducted by two novice Israeli writers who had no experience in journalism prior to conducting the investigation for this article: Anat Schwartz and Adam Sella.
Schwartz was a TV filmmaker who had previously worked for intelligence in the Israeli Air Force and Sella was a food blogger. Schwartz and Sella also had a conflict of interest working with each other as Sella was the nephew of Schwartz’s romantic partner. Schwartz herself had liked tweets following October 7th calling for Gaza to be turned into a slaughterhouse, for which The New York Times later put her under investigation and eventually fired her.
However, there are no documented cases of sexual violence by Hamas or other Palestinian militants on October 7th. Both The New York Times and the Israeli police have been unable to find any victims of sexual asssult or any forensic evidence proving sexual assault. When Schwartz conducted the investigation, she first visited and contacted all hospitals, sexual assault hotlines, crisis centers, recovery facilities, and various kibbutzim in the areas in and around where Operation Al-Aqsa Flood took place and she still found no evidence or reports of any sexual assault taking place. Given that there were no victims or forensic evidence, The New York Times decided they were going to manipulate the story and create evidence that didn’t exist.
The New York Times’ main example was a woman named Gal Abdush who was killed alongside her husband Nagi Abdush on October 7th. The claims of sexual assault came from a video filmed by an Israeli woman named Eden Wessley that she shared on her social media that showed the corpse of Gal Abdush in a black dress. According to Gal Abdush’s mother, the family, who had been interviewed by Schwartz and Sella, had no knowledge of a possible sexual assault until the article in the Times was published. Nagi Abdush’s brother, Nissim Abdush repeatedly denied that Gal Abdush had been raped, stating that he had been in contact with Nagi after Gal was killed in between 07:00 and 07:44 and that no mention of sexual assault was ever made.
Further disputes in the story were also made by Gal Abdush’s sister, Miral Alter who stated that the time of Gal’s final text message and the time of her reported murder were only four minutes apart, making it impossible for anyone to rape and burn her just based on time. Alter also revealed that The New York Times manipulated their family, stating:
“The New York Times that came to us indicated that they wanted to do a story in memory of Gal and Nagy and that’s why we approved. If we knew that it was a headline like rape slaughter, we would never agree. Never.”
In regards to Eden Wessley, she stated in an interview with Ynet that both Anat Schwartz and Adam Sella contacted her repeatedly and convinced her to hand over the video of the woman in the Black Dress, believing that it would boost Israel’s public relations effort, also known as hasbara or explanation, in pushing these baseless claims of sexual violence. Wessley is quoted in the interview stating the following:
“They called me again and again and explained how important it is to Israeli propaganda.”
Another issue involved is the issue of eyewitnesses. The eyewitnesses involved were either anonymous or of very poor credibility. The Times identified a 24 year old accountant who went by the alias, Sapir, and was described as “one of Israeli police’s key witnesses.” Sapir claimed that she saw three women raped and Hamas fighters carrying around the severed heads of three more women. Already, the testimony is discredited because there is no record of anyone in Israel being beheaded by Hamas fighters on October 7th. And according to both Haaretz and The Grayzone, no identification was made of any woman whom Sapir claimed to have witnessed raped or murdered.
Another, eyewitness was IDF mercenary Raz Cohen who has changed his story several times and did not mention rape in the first testimony. To add to that point, at the exact time when he claimed to supposedly witness a gang rape of several women by Hamas fighters who pulled up in a white van at the Nova Music Festival, he was actually taking a very smug-looking selfie.
According to The Grayzone, other eyewitnesses included a paramedic who went by the alias, G, who claimed to find evidence of sexual assault despite the fact that the bodies of the women and girls he provided as evidence were burnt beyond recognition. He also claimed to have found a baby stabbed to death in a trash can; a claim that is already discredited by the fact that there is only one baby confirmed to have been killed on October 7th and that baby was accidentally shot in a crossfire.
And other eyewitnesses included Yossi Landau from the ZAKA organization founded by a serial rapist named Yehuda Meshi-Zahav and was responsible for spreading false and discredited claims of 40 beheaded babies and the cutting of a fetus out of a mother’s womb and who’s main rival United Hatzalah was responsible for spreading false and discredited claims of babies baked in ovens. All of these claims have been discredited by Haaretz and The Grayzone. Haaretz found that ZAKA was receiving state funding by lying to the Israeli government, inflating their number of volunteers, and using their funds to finance Mr. Landau’s lifestyle in what appeared to be a money laundering scheme. It should also be noted that ZAKA and United Hatzalah have no coronary credentials, making them unqualified to provide any kind of forensic evidence.
Finally an investigaton by a United Nations mission led by Pramila Patten, found no victims, perpetrators, patterns of violence, or any forensic evidence to support the claims of sexual assault on October 7th. Patten herself admitted that the investigation was conducted on “pressure” from lobbying groups linked to the Israeli government. The claims of mass rape were debunked by Max Blumenthal, Aaron Mate, and Wyatt Reed at The Grayzone, Ali Abunimah at The Electronic Intifada, and the contributors at Mondoweiss. Given the deeper analysis of the events that took place on October 7th, one can only come to the conclusion that the charges against Palestinian leadership are dubious at best and maliciously fraudulent at worst.
In charging Sinwar, Haniyeh, and Deif, Karim Khan is following a longstanding practice by the ICC of charging official adversaries and enemies of the United States on false and politically-motivated charges. The most notable of cases, prior to this application include the indictments issued against Slobodan Milošević in 1999, Muammar Gaddafi in 2011, and Vladimir Putin in 2023.
Former Serbian President Slobodan Milošević was indicted in 1999 on charges of genocide, crimes against humanity, and war crimes committed in Kosovo, Bosnia, and Croatia. According to investigative journalist Kit Klarenberg, a 1993 CIA memo outlined policy options in regards to the Yugoslav Wars that would publicize Serbian war crimes but diminish war crimes committed by Croatians and Bosniaks, which culminated in the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY).
As a result of stated CIA policy, Bosniak war criminals such as Naser Orić who would murder, torture, and mutilate civilians in the most gruesome ways imaginable were never punished. Orić was convicted only of failing to prevent inhumane treatment of civilians and sentenced to two years imprisonment. Meanwhile, Serbian leaders were being convicted on charges of genocide and sentenced to life imprisonment. In Milošević’s case, during the trial, a separate investigation conducted by Dr. Cees Wiebes at Amsterdam University concluded that Milošević was not responsible for genocide or for the massacres in places like Srebrenica, had no foreknowledge of the massacres, and was very upset when he learned about the massacres. Milošević died before his trial could be completed.
The ICC also indicted Former Libyan Leader Muammar Gaddafi in 2011, on false charges of war crimes and crimes against humanity during the Arab Spring. This was in response to Gaddafi’s government waging a war against various Salafi-Jihadist militias that were being funded by the United States, Britain, Israel, Saudi Arabia, Qatar, and Turkey, and were committing massacres against black people and Pro-Gaddafi Libyans. The so-called “humanitarian context” that created the pretense for the passage of UN Security Council Resolution 1973 was that Gaddafi was committing mass murder against protestors and genocide against the Libyan people. This was later concluded to be false by a report from the British House of Commons Foreign Affairs Committee. The ICC also accused Gaddafi of force-feeding soldiers in the Libyan armed forces with Viagra and ordered them to rape Libyan women. No evidence was presented for this claim and it was found by Amnesty International to be completely false.
But it was too late. The damage was already done. The UN Security Council passed Resolution 1973 which imposed a no-fly zone over Libya and NATO led a violent assault and bombing campaign on Libya which allowed these Salafi-Jihadist militias to overthrow Gaddafi’s government and murder Gaddafi on live public television. The NATO assault destabilized Libya and turned the country into a failed state plagued with violence, chaos, and open-air slave markets, of which it still has not recovered to this day.
Finally, the ICC indicted the Russian President Vladimir Putin on false charges of war crimes and crimes against humanity related to the NATO proxy war against Russia in Ukraine. This was in response to a special military operation by Russia into Ukraine for defensive and humanitarian purposes: to stop NATO from expanding up to Russia’s border and into Ukraine, and to stop bombardments of the Donbas, and mass slaughter, torture, and other human rights abuses being committed against ethnic Russians in the Donbas by the Ukrainian government, which currently has an oversized Nazi presence in the form of political parties such as Svoboda, and by Nazi death squads in Ukraine that largely control the Ukrainian military such as the Azov Regiment, Centuria, and the Organization of Ukrainian Nationalists.
The primary charge leveled by Khan against Putin were kidnapping charges. This was due to the fact that Putin had evacuated large number of civilians and children from the warzone in Ukraine to safety in Russia. The accusations were based on a State Department-funded report that, according to Jeremy Loffredo and Max Blumenthal of The Grayzone, practically debunked itself and contracticted many of the claims in the indictment. Yale HRL, which conducted that investigation, according to executive director Nathaniel Raymond in an interview with The Grayzone, focused primarily on cultural education centers for children that had been evacuated.
The report also acknowledged that the Russian government provided free recreational programs and nutritious meals for all children that had been evacuated from Ukraine to Russia. The report contained no field reporting, no evidence that Russia was targeting Ukrainian youth for mass deportation, and no evidence of any war crimes committed by Russia. According to The Grayzone, as a result of Khan’s investigations into Russia and indictments against Putin, the ICC received substantial financial support from various Western governments.
As Kit Klarenberg of The Grayzone and Active Measures stated in a recent article, we have every reason to be suspicious of the ICC. The ICC has a history of only charging leaders of the Global South and official enemies and adversaries of the West. These indictments are the first time in post-World War II history that an ally of Western nations has been charged by the ICC. Unless Netanyahu and Gallant are convicted, the international legal system will remain the fraud it always has been. One could argue however that it would still be a fraud even if Netanyahu and Gallant are convicted due to the indictments against Palestinian leadership.
1st update to the story: On 31 July 2024, Ismail Haniyeh was assassinated in Tehran. Israeli Mossad agents are reported by Axios to have planted an explosive device in his guesthouse in the Iranian capital city. Yahya Sinwar has been named the Chairman of the Hamas Political Bureau, succeeding Haniyeh. On 13 July 2024, 90+ civilians including women and children were killed in an air strike, carried out by the Israeli Air Force at the Al-Mawasi refugee camp in Khan Yunis. The IDF has claimed that Mohammed Deif was killed in this strike. However, this remains denied by Hamas and unconfirmed by the Gaza Health Ministry or any outside or independent source.
2nd update to the story: On 16 October 2024, Yahya Sinwar was killed by an IDF sniper in a firefight in the southern Gaza city of Rafah. Hamas has not yet chosen Sinwar’s successor as the Chairman of the Hamas Political Bureau, nor have they chosen the next Leader of Hamas in the Gaza Strip.