The Wild West

my thoughts on yesterday's amazing announcement by the Chief Prosecutor of the ICC

Photograph from an earlier American motion picture. (National Archives)

The Wild West

On April 24, 12 Republican Senators sent a letter to Karim Khan, Chief Prosecutor of the International Criminal Court at The Hague, threatening “severe sanctions” against him, his employees and associates including his family if he were, as previously rumored and anticipated, to issue arrest warrants against Prime Minister Benjamin Netanyahu and other Israeli officials for committing war crimes in Gaza.

They gave the following reasons:

• there was “no moral equivalence between Hamas’s terrorism and Israel’s justified response”;

• “the legitimacy of Israel’s laws, legal system and democratic forms of government” would be called into question;

• an arrest warrant would be “interpreted not only as a threat to Israel’s sovereignty but to the sovereignty of the United States”, neither being a member of the ICC.

Should Mr. Khan go ahead, he was kindly reminded of the “Hague Invasion Act” which authorizes an American President to “use all means necessary and appropriate to bring about the release not just of US persons but also allies who are imprisoned or detained by the ICC”. Going even further, they threatened to end American support for the ICC and to bar Khan and his family from entering the United States. The letter ended ominously with: “You have been warned!” Now, them’s fightin’ words!

The ICC Office of the Prosecutor then issued a statement, emphasizing that such threats of retaliation are prohibited; that “even when not acted upon, [they] may also constitute an offence against the administration of justice under Art. 70 of the Rome Statute”; and that “all attempts to intimidate, impede or improperly influence the officials [must] cease immediately.” I am no lawyer, but it looks like there’s a solid case for obstruction of justice here.

In a public statement, Democratic Sen. Chris Van Hollen of Maryland compared the senators’ actions to “thuggery befitting the mafia”. However, not even the Mafia, as Judge Andrew Napolitano remarked in one of his recent episodes of “Judging Freedom”, would be that stupid and put such threats in writing.

The arguments contained in the letter are not only absurd and specious, but these 12 appalling arrogant, blatantly lawless and power drunk “lawmakers” display an understanding of justice that they have not learned from studying the law, but from watching too many westerns starring John Wayne or Clint Eastwood, or from reading too many comic books.

If the Cotton-McConnell Hole-in-the-Head Gang is not already galloping on their high horses toward the Hague with guns blazing and dust flying, they’re saddling up because now, one month later, Karim Khan has done his job and applied on May 20 for arrest warrants for Prime Minister Netanyahu and Defense Minister Gallant as well as the three Hamas leaders—Yahya Sinwar, Mohammed Deif, and Ismael Haniyeh. Rather than detail the charges which you can, and should, read in the Statement of the ICC Prosecutor Karim A.A. Khan, KC: Application for arrest warrants in the situation in the state of Palestine I will say only that there are:

1. 8 charges against the three Hamas leaders, one of which involves “rape and acts of sexual violence as crimes against humanity” and another “torture as a crime against humanity in the context of captivity”. The office is still investigating incidents of rape and sexual violence that allegedly took place on October 7 (these allegations have been investigated and debunked by independent journalists, Max Blumenthal and Aaron Maté as complete fabrications);

2. secondly, 7 charges against Prime Minister Netanyahu and Defense Minister Gallant, all of which appear to be more serious due to the systematic and deliberate nature of the listed crimes.

It is interesting to note that both parties are to be indicted in some attempt to achieve balance, I suppose, for extermination as a crime against humanity despite the grossly inequivalent numbers of Hamas’s victims (1,139 Israelis according to the last revision) to the IDF’s (by latest reports 35,562 Palestinians killed in Gaza of which 15,000 are children, 79,562 wounded and an estimated 10,000 missing). Furthermore, no mention is made of the hospitals, medical centers, schools, universities, mosques, aid facilities and agencies, houses and residential buildings, agricultural land, wells, water and wastewater treatment facilities, power plants, roads and infrastructure that the IDF has destroyed in its campaign to make Gaza uninhabitable. Perhaps, for once, the loss of human life takes precedence over material loss. It’s also noteworthy that the ICC isn’t going after the United States for its egregious complicity in genocide. But then, I guess taking more than one step at a time would be overstepping the ICC’s authority.

Israel’s reactions to the announcement were immediate and predictable.

Foreign Minister Israel Katz: “At the same time that the murderers and rapists of Hamas are committing crimes against humanity against our brothers and sisters, the chief prosecutor mentions in the same breath the prime minister and defense minister of Israel alongside the abominable Nazi monsters of Hamas — a historic disgrace that will be remembered forever by history.”

President Isaac Herzog: “Taken in bad faith, this one-sided move represents a unilateral political step that emboldens terrorists around the world, and violates all the basic rules of the court according to the principle of complementarity and other legal norms.”

War cabinet minister Benny Gantz: “While Israel fights with one of the strictest moral codes in history, while complying with international law and boasting a robust independent judiciary – drawing parallels between the leaders of a democratic country determined to defend itself from despicable terror to leaders of a bloodthirsty terror organization is a deep distortion of justice and blatant moral bankruptcy.”

Then comes Benjamin Netanyahu’s prosaic official statement issued on May 21, in which he inflates Hamas’s attack on October 7 into the “worst attack on the Jewish people since the Holocaust”; calls Mr. Khan’s “outrageous” decision “a moral outrage of historic proportions [that] will cast an everlasting mark of shame on the international court”; accuses him of creating “a twisted and false equivalence between the leader of Israel and the henchmen of Hamas” and setting “a dangerous precedent that undermines every democracy’s right to defend itself against terrorist organizations and aggressors”; predicts that his “abuse of this authority that will turn the ICC into nothing more than a farce”; and vows to continue “waging our just war against Hamas” and “defending [Israel] against those who seek our destruction”. Unable to do without throwing in his favorite old trope, Netanyahu berates Khan for “callously pouring gasoline on the fires of antisemitism that are raging across the world”, and places him among “the Great Antisemites in modern times” and “alongside those infamous German judges who donned their robes and upheld laws that denied the Jewish people their most basic rights and enabled the Nazis to perpetrate the worst crime in history!”

(You can watch one of Netanyahu’s tirades on YouTube. But I’d strongly advise you to swallow a handful of Gravol or Tums first.)

True to form, President Biden has made it clear that “there is no equivalence – none between Israel and Hamas” (which is true, but not how he sees it) and “we will always stand with Israel against threats to its security”. Ca-ching, ca-ching, ca-ching! Of course, Blinken has fundamentally rejected Khan’s decision and questioned the legitimacy and credibility of the investigation while reiterating that because Israel and the USA are not signatories to the ICC, it has no jurisdiction over the matter. Yadda, yadda, yadda!

There are three ways that we can look at this development:

1. We can be hopeful. Finally, Israel is being held to account as it was with South Africa’s application to the International Court of Justice and the court’s ruling of a plausible case for genocide. Israel’s crimes have been exposed as they happen before our eyes, and Netanyahu, Gallant, Herzog, Erdan et al can scream antisemitism, poor us, victimization, persecution, the right to self-defense as often and as loudly as they want, and not everyone is going to believe them and not everyone is going to run to their side. And if Israel keeps getting enough unequivocal feedback in the form of political isolation, economic blowback and moral condemnation, and internal disruption Israelis might start, once and for all, to take responsibility for their past and their future. They might just grow up and become world citizens. And the Palestinians might get their state at last and begin to heal in peace.

2. We can be cynical. All you have to do is look at the ICC’s record of prosecuting African, Middle Eastern and non-Western villains to conclude that the case against Israel, as much of a slam-dunk as it should be, is likely to go nowhere. And if anyone is going to be prosecuted, it will more likely be Hamas because that’s how these post-colonial institutions have been set up. International humanitarian law is all very nice on paper, and international courts are a great thing to have around for show, but without enforcement mechanisms, universal adherence and fair treatment for all concerned, they are essentially meaningless. And in the Wild West where the rich and powerful live and reign, they take the law into their own hands, and they do as they damn well please.

3. We can be realistic. Which is a little like being cynical. In the end, the outcome at the ICC even if warrants are issued and culprits are arrested won’t be about proving innocence or guilt. It won’t be about serving justice and punishing wrong-doing. It won’t even be about uncovering the truth because when it comes to the law, the meanest, toughest, baddest cowboys with the biggest guns on the fastest horses always win.

If anything is ever to change in this wild, wild world, it ain’t gonna happen in no court of law or no gunfight at high noon. The will to change has got to take root and blossom in people’s hearts and minds.

(The beauty of writing on Substack is that readers can have their say as well. Because I am one small voice, I urge you to add your own knowledge, expertise, experiences and thoughts in the comments.)