Fear of US could have made ICC prosecutor less tough on Israel


ICC Prosecutor Karim Khan. [Jonah Onyango, Standard]

In a show of great bravery, the Office of the Prosecutor at the International Criminal Court announced last week its intentions to institute proceedings regarding the Israel-Palestine situation. Specifically, the prosecutor intends to charge three Hamas leaders for committing war crimes and crimes against humanity, due to the killing of hundreds of Israeli civilians.

As well, it plans to charge Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant of the same crimes, as a result of the killing of hundreds of thousands of Palestinian civilians. Interestingly enough, even with the previous and most recent rulings of the International Court of Justice, basing their decisions on the principles of the Genocide Convention, the ICC finds no evidence of genocide to charge Israel with. If anything, reading the statement of the prosecutor, one finds that Palestine is accused of contravening more sections of the Rome Statute than Israel is.

As expected, Israel’s chief ally and weapon supplier, the United States, has condemned the statement of the ICC, stating that it will not respect the international law that it considers to be a sham. Ironically, the US, while still under the presidency of Joe Biden, was quick to release a statement welcoming the actions of the ICC when the latter released a warrant to arrest Vladimir Putin. With actions like these, coming within a few years of each other, it would be unconscionable to argue that the standing of the US on the actions taken by the ICC is one based on justice, good faith or respect for human life.

If anything, the US considers the work of the ICC from a purely political standpoint, protecting its allies and condemning its enemies through the machinery of the court. And one cannot be surprised, bearing in mind that the US was perhaps most instrumental in the writing of the Rome Statute that created the court, whilst also ensuring that the US itself would not be subject to the mandate of the court.

Considering then that the ICC has to participate in this dangerous political dance in order to not only seem impartial but also ensure that its doors stay open with little risk of invasion from the US, it then makes sense why the court has chosen to go after Hamas with much more force than it has done the leadership of Israel. Well-meaning States (Ireland, Spain and Norway), however, in a diplomatic show of support for Palestine, have made statements in the wake of that of the ICC by declaring their recognition of the State of Palestine.

Looking away from the politics of the day and considering the larger history of the colonial and post-colonial world should provide us with a clear understanding of what is taking place currently, as today’s politics do not exist within a vacuum. Hamas is considered by many as a terrorist organisation and this idea is reinforced everywhere by the media, whereby any person of Palestinian origin or in support of Palestinian liberation is forced first to condemn Hamas and its actions in order to be given audience.

However, we must remember that historically this is the nature of all movements for liberation. The Mau Mau, in its day, was declared a terrorist organisation, as was the African National Congress of South Africa through its military arm, uMkhonto we Sizwe. Decades later, once Kenya, South Africa and others had won their independence, international politics would rewrite itself, declaring these once terrorist organisations to have been legitimate resistance movements. But this validation is only granted after the fact.

Regarding the Israel-Palestine situation from the attack on Israel conducted by Hamas on October 7, 2023 is similarly ahistorical, and takes away the decades that Palestine has been fighting for its liberation since the occupation by Israel nearly 80 years ago. That this liberation movement has been longer than most does not make it invalid, and we as a collective must not forget how and where it all started, as the US and other hegemonic powers are hell-bent on having us do.

Ms Gitahi is an international lawyer