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Israel in the dock begs the question: is it a rogue state?

The UN Security Council is debating an Algerian resolution demanding Israel to cease its military operations, which is expected to be vetoed by the US 

Israel in the dock begs the question: is it a rogue state?
[Source photo: Chetan Jha/Press Insider]

On 20 May, International Criminal Court (ICC) prosecutor Karim Khan recommended issuing arrest warrants against Israel’s Prime Minister Benjamin Netanyahu, defense minister Yoav Gallant, and three leaders of Hamas: Yahya Sinwar, political leader in Gaza; Mohammed Diab Ibrahim Al-Marsi, military leader in Gaza; and Ismael Haniyeh, the head of the Hamas office in Doha.

Netanyahu has labelled Hamas as Nazis, and he might resent being bracketed with them.

Four days later, on 24 May, the International Court of Justice (ICJ) issued an order for “provisional measures” in the case brought by South Africa:

Drawing attention to Israel’s obligations under the 1948 Convention to Prevent and Punish the Crime of Genocide, the court ordered Tel Aviv to cease its military action in Rafah, Gaza; keep the Rafah crossing open for essential services and humanitarian aid; allow UN-mandated bodies to investigate genocide allegations in Gaza; and submit a report within a month, to be shared with South Africa.

The verdict was 13 to 2, with dissenting notes from Israel’s ad hoc judge Aharon Barak and ICJ vice-president Julia Sebutinde of Uganda.

It was expected that Barak, nominated by Israel, would dissent. However, Sebutinde’s stance is curious. Although she had opposed previous verdicts, she maintained that reaffirming them was sufficient. Judge Dalveer Bhandari from India joined the majority.

Clearly, the court aimed to halt Israel in its tracks, while being ‘politically correct’ by avoiding a clear verdict that Israel is guilty of committing genocide.

A major reason for wanting to ‘be politically correct’ is that such a clear verdict will impose obligations on the US and others party to the Genocide Convention to “punish” Israel. It follows that Washington must stop sending arms to Israel and defending it at the Security Council.

However, the ICJ is meant to deliver justice without fear or favour. Giving Israel a month to respond shows that the court does not understand that between 26 January, when it delivered its first order, and 24 May, the toll in Gaza has gone up from 25,700 to 35,800 as per the ministry of health in Gaza. Of course, these figures are not accurate. With the Israeli military bombing right and left, how can anyone get accurate figures? Considering that thousands are still under the rubble, the correct toll is likely to be much higher.

Why give Tel Aviv a month? Israel should have been ordered to report back in 24 or 48 hours.

The ICC 

Going back to the ICC, the charges against Israel’s leaders are of two types: crimes against humanity and war crimes.

War crime is defined as a serious violation of international humanitarian law, including the Geneva Conventions governing conduct of war.

The phrase “crimes against humanity” has been used for centuries, to include slavery for example. The definition given in the Rome Statute, the foundational treaty of the ICC, includes “extermination”, and “other  inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

The ICC will start pretrial soon, which might take weeks or even months. The ICC judges do not have to summon the accused. 

Khan has claimed that he has sufficient evidence to support his recommendation. The ICC will start the pretrial process in a chamber with three judges: Julia Motec (Romania), Reine Alapini-Gansou (Benin) and Nicolas Guillou (France). The recommendation is likely to be accepted within a couple of weeks or months. 

We do not know with what sense of urgency the chamber will work, considering the mounting toll, and political pressures from expected quarters.

Meanwhile, Israel and the US continue to put pressure on the ICC, as they have done in the past. 

According to a report by The Guardian this week, former Mossad chief Yossi Cohen had threatened Khan’s predecessor, Fatou Bensouda, with danger to her life if she proceeded against Israel. 

This was in 2018 when Bensouda was investigating whether Israel had committed crimes against humanity.

The US is not a party to ICC, primarily funded by Germany, France, and the UK. These nations were surprised by Khan’s recommendation and initially claimed to respect the ICC’s independence. 

However, when France indicated it might arrest Netanyahu following an ICC warrant, Israeli foreign minister Israel Katz rushed to Paris but returned without achieving his goal. Subsequently, France and Germany stated they would adhere to the ICC’s ruling and arrest Netanyahu.

Netanyahu was furious. Tel Aviv asked how Berlin could reconcile its support for Israel’s ‘right to self-defense’ and its stand on ICC?

Israel’s continued assault on Gaza

As the ICJ was delivering its judgment, the Israeli military intensified its assaults in Gaza.

Far from complying with the ICJ order, Netanyahu will show his defiance by an enhanced military operation, which will garner support within Israel. 

In the days after the ICJ order till Wednesday, 29 May, the Israeli military had killed more than 83 Palestinians. 

One attack on 26 May killed 46 civilians in a refugee camp. Netanyahu claimed it was a ‘tragic mistake’, with the Israeli military opening an investigation, though what is required is a UN–monitored probe.

Netanyahu is convinced that Biden can only bark and cannot bite. Biden has already stated that by killing 46 human beings Israel has not crossed any of his ‘red lines’, a statement that displays moral bankruptcy. Even Biden himself does not take his ‘red lines’ seriously.

The UN Security Council is discussing a resolution from Algeria calling on Israel to stop its military operations. The US will definitely veto it.   

A UN member-state that repeatedly violates the international humanitarian law and disobeys the ICJ can be termed a rogue state.  Such a state protected by Washington will persist in its chosen path. 

It is pertinent to note that Tzachi Hanegbi, Israel’s national security adviser, on Wednesday said that Israel plans to fight for 7 months more. The comments suggest a ceasefire might wait until after the US presidential elections. 

 In contrast, Isarael’s first prime minister David Ben-Gurion said:

The State of Israel will prove itself not by its material wealth, not by its military might or technical achievement, but by its moral character and human values.


KP Fabian is a diplomat who served in the Indian Foreign Service between 1964 and 2000. He is currently a distinguished fellow at the Symbiosis Law School in Pune. More

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