Published in the Jerusalem Post, 25 November 2024
The French have a saying: Plus ça change, plus c’est la même chose – namely, the more things change, the more they stay the same. It applies with peculiar force to the Jewish people. Regardless of time, place or circumstance, when disaster strikes or things go wrong, history demonstrates that the Jewish people are the world’s chief scapegoats. Those who have swallowed the ancient tropes and hate Jews on account of some supposed global conspiracy, or excessive economic power, or imagined hostility to Christianity or Islam – such people will believe Jews capable of anything, no matter how ludicrous.
On November 21 the International Criminal Court (ICC) declared
to the world that it believed Israel, under the direction of Benjamin
Netanyahu, deliberately set out to slaughter the civilian population of
Gaza. Anything less likely it would be
difficult to imagine.
It was on May 20, 2024 that Karim Khan KC, a British jurist and chief prosecutor of the ICC, applied to the court to issue international arrest warrants against three Hamas leaders (all now dead), and also against Netanyahu and then-defense minister Yoav Gallant. His request in respect of the Israeli leaders was backed by a catalogue of alleged war crimes and crimes against humanity.
In issuing arrest warrants for Israel’s prime minister
and his former defense chief, the ICC seem to have adopted Khan’s accusations
as fact. The court charged them with
being criminally responsible for a "widespread and systematic attack
against the civilian population of Gaza".
They claim that an Israeli blockade on Gaza resulted in a lack of food,
water, electricity, fuel and medical supplies which "created conditions of
life calculated to bring about the destruction of part of the civilian
population in Gaza, which resulted in the death of civilians, including
children, due to malnutrition and dehydration".
In short the judges
appear to believe that Netanyahu engaged in a “systematic” operation
“calculated” to slaughter the civilian population.
Together with the
warrants, the ICC issued a press release setting out the rationale for the
judges’ decision. It contains not a single indication that, in attacking Hamas,
Israel was engaged in a justifiable act of self defense, in accordance with
international law, following the barbarous onslaught by Hamas on Israel on
October 7, 2023. That, too, was not
mentioned.
Even more to the point,
the judges’ justification does not refer to the established fact that Hamas had
embedded itself within the civilian structure of Gaza. It says nothing, either, of the extraordinary
steps taken by Israel to warn the population of impending military operations.
The
ICC’s legal proceedings bear a remarkable similarity to those portrayed by
Gilbert and Sullivan in their comic opera “Trial by Jury”. In its opening
moments the Usher sternly instructs the jury: “from bias free of every kind
this trial must be tried.” A moment
later, totally enamoured of the young lady bringing the case, he tells them to
pay no heed to the “ruffianly” defendant: “What he may say you needn’t mind.”
Israel’s case, to which the ICC judges paid no heed, was convincingly placed before them on August 5 by Dr Rafael Bardaji on behalf of the High Level Military Group (HLMG), an association of military leaders and officials from NATO and other democratic countries. It tore Khan’s case to shreds.
In Khan’s application
to the ICC he states as a fact that Israel indulged in “collective punishment
of the civilian population”. He substantiates this by asserting that
Israel “deliberately” starved them, “willfully” caused them great suffering,
serious injury and death, and “intentionally” directed attacks against them,
murdering and persecuting them. He makes these assertions without
offering any proof that the actions he lists were deliberate, willful or
intentional.
As the HLMG made clear
in the first paragraph of its 28 paragraph submission, its observations were
based on solid, first-hand evidence. “The HLMG conducted an in-country assessment
of the Gaza conflict in July 2024, visiting IDF military HQs from the top
level; humanitarian aid installations and operations; units down to battalion
level of command; and a visit inside Gaza.”
It first tackles
Khan’s allegations that Israel blocked food supplies from reaching the Gazan
population, deliberately starving them. The HLMG describes visiting
crossing points built by the IDF since the war began specifically to facilitate
increased volumes of aid entering the Gaza Strip. The Erez Crossing was
completely destroyed by Hamas on 7 October, “Since then two vehicle
crossing points in Erez were established by the IDF. We observed roads inside
the Gaza Strip that were built by the IDF specifically to enable delivery of
aid laterally and south to north.”
The
submission continues: “The IDF operates according to a clear chain of command.
The directives and commands we reviewed did not include any order to starve
civilians, or to use issues related to humanitarian assistance as a method of
warfare, and in fact, included clear statements regarding the IDF’s legal
obligations towards the civilian population.”
Its
conclusion: “Our assessment shows that the IDF is operationalizing
the Israeli government’s stated policy to ‘flood Gaza with aid’… we believe
this is counter indicative of and inconsistent with any plan or intent to
employ starvation as a method of warfare at any stage in this conflict.”
The submission then
turns to Khan’s assertion in his arrest warrant application that Israel imposed
“a total siege over Gaza”, demonstrating from known and provable facts that at
no stage was Gaza under siege.
Finally the submission
describes the IDF military justice and accountability mechanism which the HLMG
found “consistent with the highest standards of our own armed
forces.” The group singled out for praise the IDF Fact Finding and
Assessment Mechanism (FFAM), which examines any incident that could raise a
charge of possible illegal conduct or military procedural
misconduct. “There are currently approximately 300 incidents being
actively investigated by the FFAM,” it says, “with many more which they have received
initial information about. To our knowledge no other armed forces have
established such a permanent system but would benefit from doing so.”
The ICC describes its
own remit in these terms. “The ICC intervenes only in
situations where States themselves are either unwilling or unable to genuinely
investigate and prosecute the perpetrators of genocide, war crimes and crimes
against humanity.”
The HLMG submission
states: “We do not believe there is a credible basis to conclude
Israel lacks the ability or will to implement national investigatory and
judicial processes that are comparable to other countries and their
militaries.”
In short the judges of
the ICC have not only ignored compelling evidence from an impeccable source
which challenges the charges brought by their prosecutor, but they have
misdirected themselves as to the court’s competence to act against the leaders
of a democratic state with a fully functioning judicial system of its own.
The ICC has shot itself in the foot.
Published in the Jerusalem Post, and the Jerusalem Post online titled "ICC accuses Israel of genocide, ignoring evidence and self-defense claims", 25 November 2024 :https://www.jpost.com/opinion/article-830547
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