The ICC can no longer ignore the genocide in Gaza

In recent months, the International Criminal Court (ICC), led by Prosecutor Karim Khan, has been heavily criticized for failing to take concrete steps to prosecute the crime of genocide in Gaza.

In November, six of its states parties, led by South Africa, referred the situation in Palestine to the courts and urged the country to take action. That same month, three Palestinian rights groups submitted a notice to the ICC, asking the ICC to investigate the crimes of apartheid and genocide in Palestine.

In December, Khan visited Israel and made a short trip to Ramallah, where he briefly met with victims of Israeli crimes. He then issued a general statement about investigating “allegations of crimes,” which made no reference whatsoever to the mounting evidence of genocide being committed in Gaza.

In January, the International Court of Justice (ICJ) declared that Israel is “plausibly” committing genocide in Gaza. That did not prompt the ICC to take action either. The court has not even attempted to justify why it failed to investigate genocide or issue arrest warrants.

Last month, our organization, Law for Palestine, submitted the first in a series of submissions to the ICC characterizing the crime of genocide committed by Israeli leaders against the Palestinian people. The 200-page document, drafted by 30 lawyers and legal researchers from around the world and reviewed by more than 15 experts, makes a compelling case for genocidal intent and for the prosecution policies the court has followed in other cases.

If the ICC fails to act again, it risks undermining its own authority as an institution for international justice and the international legal regime as a whole.

Intent is difficult to prove, but not in Gaza

The ICC is obliged to take immediate action against Gaza given the abundance of evidence supporting the accusations of genocide against Israel. Our submission highlights this reality.

In our submission we specifically focused on the intention to commit genocide, as this is considered the most difficult aspect to prove in a case of genocide.

We note the numerous statements, including from Israeli Prime Minister Benjamin Netanyahu, President Issac Herzog, Defense Minister Yoav Gallant and members of the Knesset, as well as members of the public, exposing the intent to commit genocide. We also refer to the database we have compiled of more than 500 cases of Israeli incitement to genocide as additional evidence.

Although the statements form a substantial part of the intent component of the crime of genocide, the submission goes further and highlights the various actions and official policies that additionally prove intent. These include a pattern of targeted attacks on medical facilities, the deliberate destruction of agricultural land and water systems, and obstructing aid to cause famine.

We have also highlighted parallels between Israel’s well-documented policy of ethnic cleansing and similar atrocities in the former Yugoslavia and Rwanda, where international criminal tribunals have ruled on the crime of genocide.

We argue that Israeli attempts to “decivilize” Palestinian civilians in Gaza through the systematic and inaccurate claim of human shields are a genocidal technique. We also outline Israel’s destruction of Palestinian culture, heritage and education systems, ecocidal policies and practices, and domicidal policies and practices in Gaza, which also reflect its genocidal intentions.

Finally, we argue that Israel’s practice of apartheid creates an environment conducive to the commission of genocide, just as in the cases of Nazi Germany and Rwanda, and that Israeli laws enacted to protect its leaders from persecution also indicate the intention to commit genocide. genocide.

Collectively, this evidence provides “reasonable grounds” to believe that Israel’s leaders have a general genocidal intent. This should be more than enough for the ICC to take the necessary legal action.

The ICC cannot ignore its own genocide rulings

In addition to the availability of extensive and comprehensive evidence, the ICC should also be compelled to act because of previous precedents it has set.

Since its inception, the ICC has determined that there is a reasonable basis for investigating cases of genocide, including cases involving far less destruction to civilian lives and infrastructure than is currently observed in Gaza.

For example, in the case of the genocide in Darfur, the court correctly determined in a July 2010 ruling that the threshold for issuing an arrest warrant against the then President of Sudan, Omar al-Bashir for the crime of genocide, was that “ there are reasonable grounds to believe” that the intention exists.

This decision was a revision of the court’s original March 2009 decision, where the threshold for inferring intent was “the only reasonable conclusion that could be drawn.” In its revised decision, the court stated that this threshold only applies later in the trial phase, and not at the phase of issuing arrest warrants.

The spirit of investigating genocide was also evident in the ICC’s approach to the situation in Ukraine, despite facing greater challenges in determining both the intent and acts of genocide by Russia. The ICC, led by prosecutor Karim Khan, sent a 42-member investigative team to Ukraine within three months of the large-scale Russian invasion. They gathered enough evidence to allow the court to issue four arrest warrants so far.

It is also important to note the assessment made by the current ICC Prosecutor in his previous role as Special Advisor and Head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) in 2021. Based on UNITAD’s independent report In criminal investigations, he confirmed that there is “clear and convincing evidence that IS has committed genocide against the Yazidi as a religious group.” He drew his conclusion based on both the ideology and practices of ISIS.

Needless to say, the evidence about Israel’s genocidal intentions and its connection to ideology is extremely abundant and has been extensively documented for decades. From its inception, the Zionist movement recognized itself as a settler colonial entity and viewed the elimination of the indigenous population of Palestine as a necessity. In recent months, this link between genocidal intent and ideology has been reiterated by several Israeli leaders in reference to the violence unleashed against Gaza, most prominently by Netanyahu in his call to “remember what Amalek did to you,” referring to the Bible commandment to strike and destroy the Amalekites.

Moreover, it is important to note that one of Khan’s predecessors, former ICC prosecutor Luis Moreno Ocampo, clearly stated that even the “siege of Gaza itself… is a form of genocide.”

Furthermore, the serious risk of genocide or the plausibility of its perpetration by Israel, if not its full implementation, has been recognized by top official bodies and experts within the UN system. In addition to the interim measures of the International Court of Justice and additional interim measures, which clearly stated that there are plausible arguments for genocide, a number of statements and warnings have been issued by UN special rapporteurs and working groups, the UN Committee on the Elimination of Racial Discrimination (CERD), the Committee on the Exercise of the Inalienable Rights of the Palestinian People (CEIRPP), and UN staff.

The ICC is losing its legitimacy

Based on all this evidence and recognition, the case for the ICC announcing a genocide investigation and issuing arrest warrants against Israeli leaders is moot, especially given its own standards of “reasonable grounds,” as evidenced by the Bashir case.

The case for the genocide of the Palestinians in Gaza is as compelling as any previously legally successful case – if not more so. Failure to announce an investigation into the crime of genocide will cause serious and long-lasting damage to the court’s already seriously threatened image and legitimacy.

Some even argue that the ICC is heading towards jurisprudential suicide by undermining the precedents set by the situations in Darfur and Ukraine.

The issue of Palestine is at the core of the post-World War II international legal order and cannot be ignored. Amid the continued erosion of the ICC’s legitimacy, the court and its prosecutor must urgently investigate the genocide unfolding in Palestine and issue arrest warrants against the Israeli War Cabinet if they are to regain the confidence of the global majority in this institution of global want to restore justice.

The views expressed in this article are those of the authors and do not necessarily reflect the editorial position of Al Jazeera.

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