The ICJ ordered Israel to halt its Rafah assault and the ICC prosecutor sought arrest warrants for Israeli officials.
Seven months into its genocidal campaign, Israel’s assault on Rafah led the International Court of Justice (ICJ) to issue a preliminary order on May 24. The court called on Israel to “Immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.” It also ordered Israel to keep the Rafah crossing open and permit United Nations investigative commissions to enter Gaza and investigate allegations of genocide.
In addition, mounting Israeli atrocities propelled Karim Khan, chief prosecutor of the International Criminal Court (ICC), to seek arrest warrants on May 20 against top Israeli officials.
The ICC “made the first truly historic move since its establishment in 2002” by seeking arrest warrants against Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and three prominent leaders of Hamas, Professor Richard Falk wrote.
“The ICJ and ICC confirmed this week that international action is needed because Israel will not hold itself accountable and will not voluntarily end its crimes,” said Raed Jarrar, advocacy director for Democracy for the Arab World Now (DAWN).
The Rafah Tent Massacre
But just minutes after the ICJ ruled that Israel must halt its military offensive in Rafah, Israel intensified its bombing of the city. Two days later, on May 26, Israeli bombs targeted a tent encampment in a “humanitarian safe zone” in the Tal al-Sultan neighborhood of Rafah, where Israel had instructed displaced Palestinians to shelter. The airstrikes killed nearly 45 Palestinians, mostly women and children.
The bombing caused “a large inferno and massive casualties, including children who were burned alive in a sea of flames,” Michel Moushabeck wrote at Truthout. Video recordings circulating on social media show “a headless child, charred bodies of children, women and children frantically running in all directions trying to escape the fires,” he added. “They bring Israeli atrocities in Gaza to a new level of unspeakable cruelty and horror.”
On May 28, two days after the Rafah tent massacre, Israeli tanks began rolling into central Rafah, in an escalation of Israel’s offensive.
Since October 7, 2023, Israel has conducted a full-fledged genocide in Gaza, killing more than 36,000 Palestinians. The death toll will invariably rise as untold numbers of people are trapped under the rubble. Over 80 percent of the people in Gaza have been displaced from their homes and more than half of Gaza’s population of 2.3 million are believed to be sheltering in Rafah. In spite of the ICJ’s previous orders of provisional measures (temporary injunctions) on January 26 and March 28 , Israel continues to commit war crimes, genocide and crimes against humanity in the occupied Palestinian territory.
ICC Prosecutor’s Request for Arrest Warrants
The Rafah tent massacre also came days after Prosecutor Khan asked the ICC to issue arrest warrants for Netanyahu and Gallant for the war crimes of starvation of civilians as a method of warfare, willful killing and murder, willfully causing great suffering or serious bodily injury, and intentionally directing attacks against a civilian population. Khan also seeks warrants against them for the crimes against humanity of extermination and/or murder, persecution, and other inhumane acts.
Khan requested arrest warrants for Hamas leaders Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri, and Ismail Haniyeh for the war crimes of taking hostages, cruel treatment and outrages upon personal dignity. He also asked for arrest warrants against the three men for the crimes against humanity of extermination, murder, rape and other sexual violence, torture, and other inhumane acts.
Netanyahu described Khan’s request for arrest warrants for him and Gallant as “a moral outrage of historic proportions” and a “travesty of justice” that sets “a dangerous precedent” and flies in the face of Israel’s right to self-defense.
U.S. President Joe Biden likewise blasted Khan’s action against the two Israeli leaders, calling it “outrageous.” This marked “the first time in U.S. history that a sitting president has openly sided with suspected war criminals against the ICC,” Stephen Zunes wrote at Truthout.
Biden also stated, “Whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas.” Ironically, Hamas is outraged at the equivalency in calling for charges against both Israeli and Hamas leaders, noting that it “equates the victim with the executioner.”
Indeed, Falk noted, “There is no proper equivalence between the one-off attack of October 7, despite its atrocities, and the seven-month Israeli campaign of death and devastation in Gaza.”
Furthermore, contrary to Netanyahu’s claim, Israel as an occupying power does not have the right to self-defense in the territory it occupies. In its 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ established the non-applicability of “self-defence” under Article 51 [of the UN Charter] in the situation between Israel and the occupied Palestinian territory.
Meanwhile, Hamas said it has the right to resist the Israeli occupation, including through “armed resistance.” In 1983, the UN General Assembly reaffirmed “the legitimacy of the struggle of peoples for their independence, territorial integrity, national unity and liberation from colonial domination, apartheid and foreign occupation by all available means, including armed struggle.”
Biden’s Shifting “Red Line” Enables Continuing Genocide
In early May, Biden said in a CNN interview that if Israel mounts a full-scale invasion of the Rafah, “we’re not going to supply the weapons and artillery shells.”
Two days after the vicious Israeli attack in Tal al-Sultan, however, the White House declared that Israel had not crossed a “red line” to warrant a change in U.S. policy, although administration officials called the attack “heartbreaking,” “tragic” and “horrific.”
White House Spokesperson John Kirby said, “We still don’t believe that a major ground operation in Rafah is warranted.” But The Washington Post confirmed on May 31 that “Israeli forces have begun to push into Rafah’s most populated areas in recent days, razing scores of buildings along the way.”
“Israeli commandoes backed by tanks and artillery were operating in central Rafah, the Israeli military said in a statement, without specifying precise locations,” The New York Times reported on May 31. “On [May 29], the Israeli military said it had established ‘operational control’ over the border zone with Egypt, an eight-mile-long strip known as the Philadelphi Corridor, on the outskirts of Rafah.”
Moreover, Israel used a U.S.-made bomb in its massacre in Tal al-Sultan. The Washington Post reported that, “Four weapons experts said the Israeli military used a U.S.-made precision bomb in a strike that killed at least 45 people in southern Gaza on Sunday, after reviewing visual evidence.”
The massacre came a few weeks after a State Department report concluded it was “reasonable to assess” Israel had used U.S. weapons in manners “inconsistent” with international law. Days after that report was issued, the Biden administration announced it would send Israel an additional $1 billion in weapons and ammunition.
Khan Should Have Sought Warrants for Crime of Genocide
The ICC’s Rome Statute provides for prosecution for war crimes and crimes against humanity. But it also punishes the crime of genocide. In spite of the ICJ’s January 26 ruling finding that Israel was plausibly engaging in genocide, Khan did not seek arrest warrants for genocide for Netanyahu and Gallant.
Raji Sourani, general director of Palestinian Centre for Human Rights said in a statement: “The Prosecutor’s application for arrest warrants for the Israeli Prime Minister and Minister of Defense is an important step towards accountability for the commission of serious international crimes under the Rome Statute, despite coming after 226 days of live broadcasted genocide, where Israel killed over 35,000 Palestinians, wounded more than 75,000 others, displaced 90 percent of the population, starved the civilian population and destroyed the whole Strip.” Sourani urged the ICC prosecutor to secure “arrest warrants for the crime of genocide given the staggering evidence of genocidal acts and intent made by top Israeli officials.”
Richard Falk concurred. Calling the crime of genocide “the elephant in the room,” Falk wrote, “Over time I suspect that the failure to address ‘genocide’ will be regarded as the most shocking weakness in the prosecutor’s formal statement.”
Nevertheless, Falk emphasized the significance of the two international judicial developments to the movement to protect the rights of the Palestinian people.
“The importance of the ICJ, and potentially the ICC, is to strengthen the growing tide of support for Palestinian rights around the world, alongside an emerging consensus of the sort that contributed to the American defeat in Vietnam and doomed the South African apartheid regime,” Falk wrote at Middle East Eye. “If the Palestinian people finally realise their basic rights, it will be thanks to the resistance of those victimised, as reinforced by the transnational activism of people everywhere.”
There are calls for the international community to impose sanctions and an arms embargo on Israel. “The Court’s clear and unequivocal ruling ordering a halt to Israel’s military offensive in Rafah leaves no ambiguity about what should follow: an arms embargo on Israel,” said Sarah Leah Whitson, DAWN’s executive director. “Continued U.S. arms transfers to Israel would constitute deliberate defiance of the Court’s orders and make our government complicit in genocide.” DAWN’s Jarrar added, “The international community has an obligation to use pressure and sanctions to force Israel to end its atrocities, just as it used pressure and sanctions to force South Africa to end apartheid.”
International Criminal Court Prosecutor Karim Khan (center) announces that he has requested arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, as well as Hamas leaders Yahya Sinwar, Mohammed Deif and Ismail Hanuyeh, May 20, 2024. (Courtesy International Criminal Court).
Even the most optimistic of political analysts did not expect that the International Criminal Court’s Chief Prosecutor would be uttering these words:
“I have reasonable grounds to believe that Benjamin Netanyahu (…) and Yoav Gallant (…) bear criminal responsibility for (…) war crimes and crimes against humanity …”
Aside from the two Israelis, Karim Khan has included three Palestinians on his application requesting arrest warrants from the ICC’s Pre-Trial Chamber. That is important, but we must remember that, per western thinking, Palestinians have always been the guilty party.
Evidence of the above claim is that the west has long portrayed Israel as a country at war in self-defense. Consequently, Palestinians – though occupied, dispossessed and disinherited – are the aggressors.
This bizarre logic is not strange if seen within the larger power paradigm which has defined the west’s relationship with Palestine and, by extension, the Global South.
For example, out of 54 individuals indicted by the ICC since its inception in 2002, 47 are Africans, a fact that has rightly agitated governments, civil societies and intellectuals throughout the Global South for many years.
On Western duplicity, Aimé Césaire, a Martinican intellectual and politician, wrote, “they tolerated (..) Nazism before it was inflicted on them, they absolved it, shut their eyes to it, legitimized it, because, until then, it had been applied only to non-European peoples”.
WWII inspired new thinking on the part of the west. The International Court of Justice (ICJ), the ICC, among others, have been the direct outcome of that terrible western war. It was the west’s way of trying to protect the new status quo which was established by the victors.
The Global South joined in anyway. “Africa had a particular interest in the establishment of the court, since its peoples had been the victims of large-scale violations of human rights over the centuries,” a representative of the Organization of African Unity said in Rome, the birthplace of the Rome Statute, in 1998.
Predictably, however, the ICC turned into a platform where former colonial masters cast judgment on the non-European world. In that sense, justice was hardly served.
As always, Palestine has, and continues to serve as the litmus test of the international order. For over 15 years, Palestinians have been seeking to enlist the ICC’s help to hold Israel accountable for its military occupation and various crimes in Palestine.
The Palestinians have done so simply because any attempt at establishing a practical mechanism to end the Israeli occupation through the United Nations has been met with a cruel American veto.
As the Israeli occupation turned into a permanent one, and racial apartheid spread its tentacles to cover every inch of Palestine, the US’ support of Israel has become a first line of defense against any international criticism, let alone action, aimed at reining in Israel.
Even though the US has refused to join the ICC, it still has great influence over the organization, either through sanctions or pressure imposed by its allies which are members of the Court.
Thus, the ICC procrastinated. Decisions that should have taken only months, took years to be made. The institution, which was created to deliver swift justice, became a bureaucratic legal apparatus that did everything in its power to escape its responsibilities towards the Palestinians.
The persistence of Palestinians and the massive solidarity they have obtained from countries throughout the Global South, eventually paid off.
In 2009, Palestinians filed their first application to join the ICC. Yet, it took over three years for then-Prosecutor Luis Moreno Ocampo to reach his decision, in 2012, denying Palestinians such urgent membership on the account of their legal status as mere observers at the UN.
The rest of the world rallied behind Palestine again and, later that year, the UN General Assembly granted Palestine its ‘non-member observer state’ status.
It took another three years for Palestine to officially join the ICC. Four years later, in 2019, then-Prosecutor Fatou Bensouda stated that the so-called statutory criteria needed to begin an investigation in Palestine were satisfied. But, instead of opening an investigation, Bensouda sent the matter back to the Pre-Trial Chamber for further confirmation.
An official investigation was not opened until March 2021, but was grounded to a halt when Karim Khan replaced Bensouda as the chief prosecutor later that year.
So what happened between March 2021 and May 20, 2024 that allowed the ever-reluctant Khan to go as far as requesting arrest warrants?
First, the Israeli genocide in Gaza, where victims are measured in the tens of thousands.
Second, the credibility of the west-enshrined legal system which has governed the world since WWII, was at stake. This explains the emphasis made by Khan in his May 20 statement: “If we do not demonstrate our willingness to apply the law equally (…) we will be creating the conditions for its collapse.”
Third, the solidarity of the Global South, which has served as the backbone of all Palestinian efforts at international legal institutions.
After decades of a one-sided approach to global conflicts, the pendulum is finally shifting. Indeed, when we say that Gaza is changing the world, we mean it.
