ICC War Crimes Charges a Milestone but Falls Far Below Expectations

Air strikes continue in Gaza. Credit: WHO Air strikes continue in Gaza. Credit: WHO

ICC War Crimes Charges a Milestone but Falls Far Below Expectations

By : Mouin Rabbani

[This opinion piece was originally published by the Inter Press Service News Agency on 22 May, 2024.]

AMMAN, Jordan, May 22 2024 (IPS) - The ICC Prosecutor’s applications for arrest warrants regarding the Situation in Palestine represent a milestone. But they are of little credit to Prosecutor Karim Khan.

It is abundantly clear that Khan has been sitting on this file for years, hoping it would simply disappear. Two matters forced his hand. 

First, his 2023 indictments of senior Russian officials despite a previous pledge that he would only pursue cases referred to his office by the United Nations Security Council and ignore the rest – particularly the investigations concerning Afghanistan and Palestine that were opposed by the US and UK. 

Having gone back on his commitment, the hypocrisy associated with continuing to ignore the Palestine investigation initiated in 2021 became simply too overwhelming, particular as Israel’s genocidal onslaught against the Palestinians in the Gaza Strip intensified in 2024.

Second, the global outcry against his inertia became too loud to ignore. Much as Khan would have preferred to pursue the policy preferences of the US, UK, and Israel, the main sponsors of his campaign for ICC prosecutor, his inaction became untenable. 

According to Khan. his office been investigating the Situation in Palestine since early 2021, and is examining all violations of the Rome Statute as since 2014. Yet in his case too, history appears to have commenced on 7 October 2023. 

His applications wholly ignore, any and all, issues unconnected with the current situation in the Gaza Strip. Nothing about the crime against humanity that is apartheid, nothing about the war crime of illegal settlement, nothing about Israel’s previous onslaughts against the Gaza Strip, or its systematic sniper attacks against demonstrators during the 2018 Great March of Return. 

Ever the careful politician attentive to those who got him elected, he pointedly indicted three Hamas leaders but only two Israeli officials. This raises numerous questions: why did he seek an arrest warrant for the head of Hamas, who according to available reports was not involved in the planning or execution of the 7 October 2023 attacks, but not Israeli President Isaac Herzog, who has explicitly identified Palestinian civilians as legitimate military targets? 

Why did Khan decline to apply for arrest warrants for the Israeli military’s chief of the general staff, or any of the senior Israeli military commanders directly responsible for perpetrating the crimes he has enumerated, or other members of Israel’s war cabinet who share full responsibility for its decisions? 

Why did he pointedly ignore the crime of genocide, which is explicitly identified in the Rome Statute? It may well be the case that the International Court of Justice (ICJ) is also considering Israel’s responsibility for genocide, but unlike the ICJ the ICC does not deal with individual criminal responsibility.

It seems indisputable that Khan is once again playing politics. His problem is that his efforts to curry favour in Washington will gain him nothing, and he is already being attacked from across the US political spectrum for violating the sacrosanct principle Israeli impunity. Washington will now stop at nothing to ensure that only Khan and Hamas are held to account. 

US attempts to interfere with ICC procedures themselves constitute crimes under the Rome Statute. Will Khan seek to hold the raving lunatics who have taken over the Washington asylum to account, or look the other way in the hope of achieving absolution?

The flaws of Khan’s conduct notwithstanding this remains an enormously significant development. Together with the ICJ genocide case, it has now become impossible for Israel to maintain its state of exceptionalism. 

It is increasingly being judged both legally and politically on the basis of its actual conduct rather than through the sordid prism of twentieth-century European history. For Israel this represents a defeat of strategic proportions.

Past is Present: Settler Colonialism Matters!

On 5-6 March 2011, the Palestine Society at the School of Oriental and African Studies (SOAS) in London will hold its seventh annual conference, "Past is Present: Settler Colonialism in Palestine." This year`s conference aims to understand Zionism as a settler colonial project which has, for more than a century, subjected Palestine and Palestinians to a structural and violent form of destruction, dispossession, land appropriation and erasure in the pursuit of a new Jewish Israeli society. By organizing this conference, we hope to reclaim and revive the settler colonial paradigm and to outline its potential to inform and guide political strategy and mobilization.

The Israeli-Palestinian conflict is often described as unique and exceptional with little resemblance to other historical or ongoing colonial conflicts. Yet, for Zionism, like other settler colonial projects such as the British colonization of Ireland or European settlement of North America, South Africa or Australia, the imperative is to control the land and its resources -- and to displace the original inhabitants. Indeed, as conference keynote speaker Patrick Wolfe, one of the foremost scholars on settler colonialism and professor at La Trobe University in Victoria, Australia, argues, "the logic of this project, a sustained institutional tendency to eliminate the Indigenous population, informs a range of historical practices that might otherwise appear distinct--invasion is a structure not an event."[i]

Therefore, the classification of the Zionist movement as a settler colonial project, and the Israeli state as its manifestation, is not merely intended as a statement on the historical origins of Israel, nor as a rhetorical or polemical device. Rather, the aim is to highlight Zionism`s structural continuities and the ideology which informs Israeli policies and practices in Palestine and toward Palestinians everywhere. Thus, the Nakba -- whether viewed as a spontaneous, violent episode in war, or the implementation of a preconceived master plan -- should be understood as both the precondition for the creation of Israel and the logical outcome of Zionist settlement in Palestine.

Moreover, it is this same logic that sustains the continuation of the Nakba today. As remarked by Benny Morris, “had he [David Ben Gurion] carried out full expulsion--rather than partial--he would have stabilised the State of Israel for generations.”[ii] Yet, plagued by an “instability”--defined by the very existence of the Palestinian nation--Israel continues its daily state practices in its quest to fulfill Zionism’s logic to maximize the amount of land under its control with the minimum number of Palestinians on it. These practices take a painful array of manifestations: aerial and maritime bombardment, massacre and invasion, house demolitions, land theft, identity card confiscation, racist laws and loyalty tests, the wall, the siege on Gaza, cultural appropriation, and the dependence on willing (or unwilling) native collaboration and security arrangements, all with the continued support and backing of imperial power. 

Despite these enduring practices however, the settler colonial paradigm has largely fallen into disuse. As a paradigm, it once served as a primary ideological and political framework for all Palestinian political factions and trends, and informed the intellectual work of committed academics and revolutionary scholars, both Palestinians and Jews.

The conference thus asks where and why the settler colonial paradigm was lost, both in scholarship on Palestine and in politics; how do current analyses and theoretical trends that have arisen in its place address present and historical realities? While acknowledging the creativity of these new interpretations, we must nonetheless ask: when exactly did Palestinian natives find themselves in a "post-colonial" condition? When did the ongoing struggle over land become a "post-conflict" situation? When did Israel become a "post-Zionist" society? And when did the fortification of Palestinian ghettos and reservations become "state-building"?

In outlining settler colonialism as a central paradigm from which to understand Palestine, this conference re-invigorates it as a tool by which to analyze the present situation. In doing so, it contests solutions which accommodate Zionism, and more significantly, builds settler colonialism as a political analysis that can embolden and inform a strategy of active, mutual, and principled Palestinian alignment with the Arab struggle for self-determination, and indigenous struggles in the US, Latin America, Oceania, and elsewhere.

Such an alignment would expand the tools available to Palestinians and their solidarity movement, and reconnect the struggle to its own history of anti-colonial internationalism. At its core, this internationalism asserts that the Palestinian struggle against Zionist settler colonialism can only be won when it is embedded within, and empowered by, the broader Arab movement for emancipation and the indigenous, anti-racist and anti-colonial movement--from Arizona to Auckland.

SOAS Palestine Society invites everyone to join us at what promises to be a significant intervention in Palestine activism and scholarship.

For over 30 years, SOAS Palestine Society has heightened awareness and understanding of the Palestinian people, their rights, culture, and struggle for self-determination, amongst students, faculty, staff, and the broader public. SOAS Palestine society aims to continuously push the frontiers of discourse in an effort to make provocative arguments and to stimulate debate and organizing for justice in Palestine through relevant conferences, and events ranging from the intellectual and political impact of Edward Said`s life and work (2004), international law and the Palestine question (2005), the economy of Palestine and its occupation (2006), the one state (2007), 60 Years of Nakba, 60 Years of Resistance (2009), and most recently, the Left in Palestine (2010).

For more information on the SOAS Palestine Society 7th annual conference, Past is Present: Settler Colonialism in Palestine: www.soaspalsoc.org

SOAS Palestine Society Organizing Collective is a group of committed students that has undertaken to organize annual academic conferences on Palestine since 2003.

 


[i] Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event, Cassell, London, p. 163

[ii] Interview with Benny Morris, Survival of the Fittest, Haaretz, 9. January 2004, http://cosmos.ucc.ie/cs1064/jabowen/IPSC/php/art.php?aid=5412