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International Justice System Under Threat Over Genocide Issues

Like almost all modern conflicts, the legal aspects of the Israel-Hamas struggle are the subject of intense debate. This is not a new phenomenon; such debates have occurred in the past. As with previous military operations in Gaza, Israel is arguing that this current campaign is a measure of self-defense. Article 51 of the UN Charter states that the right to self-defense is a fundamental principle of international law. While there are various debates surrounding the nuances of this principle, any state has the right to take defensive measures in the face of armed attacks. Most international lawyers believe that if rockets are fired into civilian areas and disrupt the normal social life of a part of a country, it can be considered an armed attack under international law. Article 51 of the UN Charter supports this view. However, there is ongoing debate about under what specific conditions such self-defense actions are legally justified.

To uphold international law and attempt to stop Israeli brutality in Gaza, two of the world’s highest courts have become implacable adversaries of Israel. Through separate rulings, the International Court of Justice (ICJ) and the International Criminal Court (ICC) have sought to put Israel on the back foot regarding its actions in Gaza. A panel of judges from the ICJ called for Israel to immediately halt its ongoing attacks in Rafah, South Gaza. In response, Israel intensified its attacks and brutality. On May 23, Israel carried out a bombing raid on a so-called safe zone for refugee families who had been forced to flee from Gaza.

Moreover, as a result of the airstrikes, a tented area caught fire, leading to the deaths of several dozen Palestinians, many of whom were burned alive. A video captured the harrowing image of a person holding a severed head of a child as a result of the Israeli bombing. Additionally, over a hundred people, including many women and children, were severely injured with horrific burns and serious wounds. Israel has destroyed almost all medical facilities in the area that could have treated the wounded in Rafah. In addition, Israel has rejected the entry of basic medical supplies, such as painkillers, that could have alleviated the suffering of the Palestinians. These events are a direct consequence of what President Biden warned a few months ago: that the Israeli attacks on Rafah would cross a "red line." However, as soon as Israel crossed this red line, the American "red line" seemed to vanish into thin air. Senior officials in the Biden administration issued a statement calling the images from Rafah "heartbreaking," thus evading any responsibility for the situation.

Even after the May 23 attack, similar incidents of violence continued. Two days later, the Israeli forces launched another assault on the same area, killing 21 Palestinians, most of whom were women and children. In response to the decision made in January to effectively prosecute Israel for genocide, the world courts had demanded an end to the Israeli attacks in Rafah.

The judicial process in this court could take several years to complete. The ICJ had insisted that Israel refrain from taking any steps that could further endanger the lives of Palestinians. The court had strongly indicated that the ongoing attacks in Rafah could potentially expedite legal proceedings against Israel.

Israel may have had the audacity to defy the court because it was confident that the Biden administration would support it. United Nations officials have acknowledged that they have run out of negative terms to describe the worsening catastrophe in Gaza, labeling it as “hell on earth.” A few days before the ICJ ruling, the wheels of its counterpart, the ICC, finally began to turn. ICC Chief Prosecutor Karim Khan announced that he would seek arrest warrants against Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and three Hamas leaders. There are allegations against Israeli officials that they have been obstructing aid distribution in Gaza for months and creating a famine. The ICC could be a more dangerous legal forum for Israel than the ICJ. It may take several years for the ICJ to reach a decision on whether Israel has committed genocide in Gaza.

On the other hand, the ICC could issue arrest warrants within a matter of days or weeks. Furthermore, there are no practical enforcement mechanisms for the decisions of the World Court. This is because the United States will veto any UN Security Council resolution aimed at holding Israel accountable. On the other hand, a ruling from the ICC will impose obligations on over 120 states that have ratified the Rome Statute. As a result, if Netanyahu and Gallant set foot in any of those countries, there will be an opportunity to arrest them. This would restrict their movements in many parts of the world. There is no reason for Israeli officials to believe that the ICC’s investigation will be confined to just Netanyahu and Gallant.

Over time, the ICC could issue summons against many more Israeli officials. For various reasons, Israel has accused this court (ICC) of anti-Semitism and has threatened to harm its officials. The country has effectively declared a war against the court, and Washington was also prepared to demonstrate its power. When asked at a Senate committee hearing whether he would support the Republican proposal to impose sanctions on the ICC, Secretary of State Antony Blinken responded that “we want to work bilaterally to find an appropriate response.” However, documents indicate that U.S. measures against the ICC are likely to follow the model of the sanctions imposed by Biden’s predecessor, Donald Trump, in 2020. The ICC had threatened to investigate both Israel for war crimes in the occupied Palestinian territories and the United States for war crimes in Afghanistan. In response, the Trump administration accused the ICC of financial corruption and abuse at the highest levels. However, no evidence was ever provided for these allegations.

At that time, Chief Prosecutor Fatou Bensouda was denied entry into the United States. Trump administration officials threatened to seize her and other ICC judges' assets. Then-U.S. Secretary of State Mike Pompeo said, "We are committed to protecting our friends and allies from the corrupt ICC." A joint investigation by the Israeli website 972 and Britain’s The Guardian has revealed that, with visible American support, Israel has been waging a covert war against the ICC for over a decade.

Since Israel oversees the occupied territories, it has been able to obstruct ICC officials from directly investigating war crimes. According to sources from The Guardian and the 972 websites, there was intense pressure from the United States concerning the issuance of arrest warrants for Israeli officials. Karim Khan has stated that interference with court proceedings is a criminal offense. In the meantime, a group of Republican Senators has sent Khan a threatening letter saying, "If you target Israel, we will target you." Khan himself has admitted that he is facing a campaign of intimidation.

The question is: To what extent is this affecting Khan and the ICC judges? How much will they be impeded in continuing and expediting their investigations? Despite the intimidation, legal traps are quickly tightening around Israel. For the world’s highest judicial authority, it is becoming increasingly impossible to ignore the massacre in Gaza and the near-total destruction of civilian infrastructure, including schools and hospitals. In the wake of Israeli devastation, thousands of Palestinian children have been killed, crippled, and orphaned. The blockade imposed by Israel has led to the slow death of thousands more from starvation. There is increasing moral pressure on the World Court and the International Criminal Court to put an end to these atrocities and genocides. Both the ICJ and the ICC are fully aware of the risks associated with taking action against Israel. As a result, each court has proceeded very slowly and cautiously in addressing Israeli atrocities. In 2023, the United States strongly supported the ICC's issuance of an arrest warrant against Russian President Vladimir Putin.

The United States and its allies have imposed economic sanctions on Moscow over the Ukraine war and have continuously supplied arms to Ukraine to fight against Russian aggression. In this context, questions are being raised about the biased role of the U.S. and its allies in the case of Israel. How long can they continue to suppress these questions? It is undeniable that there are similarities between the Israeli war crimes in Gaza and the wars and occupations carried out globally by the United States and its close allies. The ICC prosecutor has made it clear that she fully understands that both Israel and the United States want the ICC and the ICJ to remain silent about the Gaza genocide. To Amanpour, she said, "If we do not apply international law equally, we as humanity will be destroyed."

Israel and the United States are currently harming the people of Gaza with their actions, but this disregard for international law or the manipulation of laws for their own ends will not stop here. If this continues, it will ultimately harm everyone. The international courts have repeatedly emphasized that human rights laws do not become suspended during times of war. It has been said that war laws were primarily created to ensure human rights. However, in reality, there are significant concerns about how these laws are actually followed, especially in decisions regarding target selection. In the context of the ongoing conflict in Israel's Arab-majority areas, international humanitarian law is often not applied effectively. Israeli security forces' behavior is then considered under human rights laws. However, the main point is that while international humanitarian law may work to some extent to mitigate the horrors of war, if a war were to occur, the outcomes would still be catastrophic.

Rayhan Ahmed Tapader: Researcher and Columnist.

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