Prosecution Of Israeli War Criminals

Waseem Shehzad

Jumada' al-Ula' 17, 1445 2023-12-01

Main Stories

by Waseem Shehzad (Main Stories, Crescent International Vol. 53, No. 10, Jumada' al-Ula', 1445)

Three Palestinian human rights organizations and six countries have lodged cases against Israeli political and military rulers for war crimes at the International Criminal Court (ICC). The three Palestinian organizations—Al Haq, Al Mezan and the Palestinian Centre for Human Rights—urged the body to investigate Israel for “apartheid” as well as “genocide” and issue arrest warrants for Israeli leaders.

The six countries that have separately lodged cases include South Africa, Bangladesh, Bolivia, Comoros, Djibouti and Turkiye. Bolivia, a South American country, has even cut off diplomatic ties with the zionist entity. It is the only country to do so although several countries have recalled their ambassadors from Tel Aviv.

South Africa’s parliament on November 16 voted to sever ties with Tel Aviv. There has been global revulsion at Israel’s barbaric attacks against defenceless Palestinian civilians, the vast majority of them women and children.

While the ICC has been asked to launch an investigation into Israeli war crimes, it is highly unlikely that it will do much about it. The ICC and especially its current chief prosecutor, Karim Khan take their orders from the US and other western regimes.

Since its establishment, only African leaders have been convicted. The only exceptions have been Serbian fascists Slobodan Milosevic, Radovan Karadzic and Ratko Mladic for their role in the genocide in Bosnia-Hercegovina. Earlier this year the ICC also found Russia ‘guilty of war crimes’ in Ukraine and issued an arrest warrant for President Vladimir Putin.

Did Putin perpetrate a genocide in Ukraine? His “crime” was that he moved orphaned children from the Donbass region to safety in Russia as the war raged on.

Israeli war criminals have yet to be investigated, much less prosecuted despite a case being lodged against them for their brutal war on Gaza in 2014. The former chief prosecutor, Fetou Bensouda was far more diligent in pursuing the case. But since her retirement in June 2021 and the Pakistani origin British citizen Karim Khan taking over, the case has gone into cold storage.

Khan who is Qadiani, expressed on October 30 deep sorrow about the “suffering” of Israeli families whose relatives were taken captive by Hamas fighters. “Since the 7th of October,” Khan said, “I really intensified my efforts to get in and access the locations where crimes were committed in Israel, to meet the families of those that are grieving, those that are living with fear, as if time has stood still at an acutely painful moment, waiting for their loved ones, worried … and praying for their return.”

Only as an afterthought, he added that he had “made every effort to enter Gaza, but it has not been possible”. By then, the zionist war criminals had murdered more than 7,000 Palestinians of whom 70 percent were women and children. Surely, Khan was not oblivious of this horrendous death toll that has rightly been described as genocide even by Jewish legal experts. The UN Human Rights chief has been equally explicit calling Israel’s collective punishment of Palestinian civilians as “a war crime”.

So, why is Khan so concerned about the plight of Israeli families whose relatives have been taken captive by Hamas but has little about Palestinian suffering? Mental slaves cannot be expected to adopt morally correct positions. As the ICC’s chief prosecutor, Khan’s office has “an ongoing investigation with jurisdiction over Palestine that goes back to 2014.” He even acknowledged as much on October 30. So what is holding him back from bringing charges against Israeli officials, political and military? Had his office done so, the chances are the zionists would not have perpetrated such horrendous war crimes in Gaza again.

Given the ICC’s lack of interest in pursuing Israeli war criminals, is it the right forum to try them or an alternative platform exists?

Craig Murray, the former British ambassador, has argued that the Genocide Convention must be invoked against Israel. Any one of the 149 states party has the right to call out the genocide in progress in Gaza and report it to the United Nations General Assembly. He lays out the scenario.

“If another state party disputes the claim of genocide—and Israel, the United States and the United Kingdom are all states party—then the International Court of Justice (ICJ) is required to adjudicate on ‘the responsibility of a State for genocide’.”

Israeli leaders have repeatedly declared their intent to conduct collective punishment and ethnic cleansing of Palestinians, with Israeli Defence Minister Yoav Gallant calling them “human animals” and vowing to “eliminate everything”. Benjamin Netanyahu has said that he wants to push the Palestinians into the Sinai Peninsula. Egypt has rejected the ethnic cleansing of Palestinians from Gaza.

When he spoke on October 30, the ICC prosecutor made no mention of the “textbook case of genocide” referenced by Craig Mokhiber, a top UN human rights official who recently resigned in protest over his organisation’s failure to take action. Other legal experts have been equally explicit.

Given the ICC’s reluctance to take action against Israeli leaders, what other option is available to prosecute Israeli war criminals? The International Court of Justice (ICJ) can be approached. True, it prosecutes states rather than individuals but once a state has been found guilty, then the case against individuals can be pursued at the ICC. This is what happened with the Serbian war criminals.

Article II of the Genocide Convention defines genocide thus:

“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”

Article III outlines the acts that shall be punishable:

(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.

In order to remove any ambiguity, Article IV identifies the individuals responsible.

“Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”

The case against Israeli state and leaders (political and military) is clear cut. All it requires is for any state party to the Genocide Convention to take the matter to the United Nations General Assembly. From there, it can proceed to the International Court of Justice and then to the ICC.