Where Does the International Criminal Court Stand on Charges of Mass Killings in Gaza?

By Thalif Deen

The headquarters of the International Criminal Court in The Hague, the Netherlands. Credit: Adam Mørk

The continued devastation of Gaza by Israel has triggered widespread charges of war crimes, genocide, forced displacement, ethnic cleansing, starvation as a weapon of war and mass killings of civilians – over 22,000 at last count—compared to 1,200 killings by Hamas.

These accusations have prompted growing demands for intervention by the International Criminal Court (ICC) in The Hague, which has remained silent while its Prosecutor Karim Khan is accused of double standards and playing politics.
The New York-based Foreign Press Association (FPA), which was scheduled to host a zoom discussion later this week, said “with more than 20,000 Palestinians dead, areas of Gaza turned to rubble, ICC prosecutor Karim Khan has yet to investigate either Israel or Hamas for the deaths, on and after 7 October– despite his exemplary hair-trigger speed against (Russian President) Vladimir Putin fo war crimes committed in Ukraine”.

With South Africa’s referral of Israel to the International Court of Justice (ICJ) for genocide, and the U.S.’s continued strong support for the Netanyahu government’s military response as geopolitical context, many are looking for the International Criminal Court to take action — if only as a warning to the parties, but so far Karim Khan, the British barrister serving as ICC prosecutor, shows no sign of action, reinforcing allegations of “rich country justice,” said FPA.

Ian G Williams, author, writer, broadcaster and FPA president, told IPS Khan is approaching the prosecution with all the caution of a Sheriff in Old Alabama prosecuting a KKK lynch mob.

“With his accomplices in Washington, he has done more to substantiate the global South’s suspicions of the bias of UN justice than anyone would have dreamt,” declared Williams, a former President of the UN Correspondents Association (UNCA).

Mouin Rabbani, Co-Editor, Jadaliyya, an independent ezine produced by the Arab Studies Institute, told IPS Karim has consistently demonstrated that he is unfit for the position of ICC Prosecutor.

“At a time when he should be working overtime to address the ICC’s legitimacy deficit, he has politicised the position well beyond what its credibility can bear”

Shortly after assuming his post, he reassured the Security Council he would only prioritise cases that were referred to his office by the Council, and effectively ignore others — most prominently Palestine and Afghanistan, he pointed out.

“When Russia invaded Ukraine several months later, this modus operandi went out the window and within a year he indicted the head of state of a permanent member of the Council”, Rabbani said.

“Meanwhile he treated the much older investigation into Palestine as if it did not exist.
Khan, in other words, has consistently demonstrated an addiction to pandering to the priorities of Western power”.

Since 7 October, Rabbani argued, his double standards are once again on visible display: he has repeatedly and explicitly denounced Palestinian organisations in the strongest possible terms, suggesting he has already reached conclusions about their conduct, while refusing to consider similar statement with respect to Israel and its conduct.

“Rather, he has suggested that the Israeli judiciary rather than the ICC is the appropriate venue to hold Israeli war criminals accountable — despite numerous human rights organisations and independent investigations having denounced this system as a sham. It is entirely possible that Khan will indict only Palestinians and leave Israeli suspects to be declared innocent by Israeli courts”.

His refusal to investigate “the Situation in Palestine” beyond claiming an investigation exists without offering any evidence it is actively being pursued, was in fact cited by South Africa in its ICJ submission regarding Israel’s genocide in Gaza. Tellingly, Khan has been entirely mum on this case, and indeed on other Israeli crimes, Rabbani said.

“Khan has become a central enabler of Israeli impunity. Western leaders in fact routinely demur when challenged on Israeli war crimes, claiming these are within the purview of Khan while knowing full well Khan considers them within the purview of the recess of his filing cabinet”.

The ICC will remain incapable of pursuing Israeli crimes until Khan is replaced by a prosecutor committed to conducting the job in accordance with its mandate and terms of reference, declared Rabbani.

Addressing the 193-member UN General Assembly on January 9, Riyad Mansour, Permanent Observer of the State of Palestine to the UN, said: “I stand here representing a people being slaughtered, with families killed in their entirety, men and women shot in the streets, thousands abducted, tortured and humiliated, children killed, amputated, orphaned, scarred for life. No people should endure this. This must stop. “

The whole world, he pointed out, is calling for an immediate humanitarian ceasefire, 153 states across the globe have voted for a ceasefire, the moral voices of our time have pleaded for a ceasefire, the Secretary General and the United Nations have called for a ceasefire, the humanitarian organizations have urged a ceasefire. They all know the horrors need to end and the only way to end them is a ceasefire.

“This assault is without precedent in modern history in the scale and pace of killing of children, of UN personnel, of medical and rescue teams, of journalists. This is a war of atrocities. How can you reconcile opposing these atrocities and vetoing a call to end the war that is leading to their commission?” asked Mansour.

A roundtable of experts convened by Democracy for the Arab World Now (DAWN) has concluded that the assault on Gaza by Israel, including mass killing of at least 22,000 civilians, the forced displacement of nearly 1.9 million Palestinians, deprivation of essentials like water and electricity, and denial of humanitarian access, coupled with explicit declarations of intent by Israeli officials to destroy the population of Gaza, likely amounts to genocide under the Convention on the Prevention and Punishment of the Crime of Genocide.

“Expert analysis of Israeli government statements revealing their intent to destroy Palestinians in Gaza, combined with military actions on the ground, including mass killings, forced displacement, and the deprivation of items essential to life in Gaza, suggest that the crime of genocide is being committed against the Palestinian population,” said Sarah Leah Whitson, Executive Director of DAWN.

Meanwhile, the ICC says it investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression. As a court of last resort, it seeks to complement, not replace, national Courts, and is governed by an international treaty called the Rome Statute.

There are 123 member countries, but dozens of governments are not ICC parties, including China, India, Russia, and the United States.

The ICC has over 900 staff members from approximately 100 States with 6 official languages: English, French, Arabic, Chinese, Russian and Spanish. But the two working languages are English and French.

According to ICC, so far, there have been 31 cases before the Court, with some cases having more than one suspect. ICC judges have issued 40 arrest warrants: 21 people have been detained in the ICC detention centre and have appeared before the Court. 15 people remain at large. Charges have been dropped against 7 people due to their deaths.

ICC judges have also issued 9 summonses to appear. The judges have issued 10 convictions and 4 acquittals.

This post first appeared on IPS News.