The International Criminal Court finally indicted Benjamin Netanyahu and Yoav Gallant, but this action is merely performative. If arrest warrants do not include war criminals like Joe Biden and other U.S. officials, they are ultimately empty attempts to maintain a semblance of legitimacy.
After months of procedural stalling, allegations of sexual harassment against the lead prosecutor and systematic threats from the United States and its Western allies, it did not appear that the International Criminal Court (ICC) would even execute the final phase of the criminal indictment process and Israeli impunity would continue. But on November 20, 2024, six months to the day after Karim Khan, chief prosecutor for the court, submitted his request for the indictments of Israeli Prime Minister Benjamin Netanyahu, Minister of Defense Yoav Gallant and Hamas leaders Mohammed Deif, Yahya Sinwar and Ismail Haniyeh, the court finally indicted Netanyahu, Gallant and threw in Mohammed Deif who Israel claims to have assassinated, as they did to Sinwar and Haniyeh.
There was sincere rejoicing around the world after the arrest warrants were issued. Finally, it was thought, there would be some accountability for the brutal savagery of the Israeli settler-colonial apartheid state’s horrific crimes against the Palestinian people. For some, it also meant that just maybe the days of the ICC acting as a convenient instrument of Western white power might actually be over.
However, there are two elements to this indictment that reaffirm the biases and double standards of the ICC.
First, while many around the world proclaimed that the indictments confirmed what major international human rights groups, human rights lawyers and scholars and the general public could plainly see, and that was the reality that Israel was perpetrating an active genocide, the indictments were not based on the issue of genocide but on war crimes and crimes against humanity.
Reflected in the language of the indictment, it was clear that Netanyahu and Gallant “each bear criminal responsibility for the following crimes as co-perpetrators for committing the acts jointly with others: the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts.”
It goes on to say, the court “also found reasonable grounds to believe that Mr. Netanyahu and Mr. Gallant each bear criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the civilian population.”
But the question then becomes, if it is clear that Israel is using starvation against a specific ethnic group with the intention to murder numbers of that group and deploys other “inhumane acts” that Israeli authorities directed toward the “civilian population”, why, and this is the second element, wouldn’t the ICC at least go as far as other legal scholars and international human rights organizations and call it for what it is – genocide?
Let’s look at some of the “inhumane acts” mentioned in the indictments:
The court said that “both individuals intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity, from at least 8 October 2023 to 20 May 2024. This finding is based on the role of Mr. Netanyahu and Mr. Gallant in impeding humanitarian aid in violation of international humanitarian law”
Moreover:
“By intentionally limiting or preventing medical supplies and medicine from getting into Gaza, in particular anaesthetics and anaesthesia machines, the two individuals are also responsible for inflicting great suffering by means of inhumane acts on persons in need of treatment. Doctors were forced to operate on wounded persons and carry out amputations, including on children, without anaesthetics, and/or were forced to use inadequate and unsafe means to sedate patients, causing these persons extreme pain and suffering. This amounts to the crime against humanity of other inhumane acts.”
And now let’s look at the definitions of genocide reflected in the United Nations’s Convention on the Prevention and Punishment of the Crime of Genocide:
Article II
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
It appears from the language of its indictment that there were both genocidal consequences and more importantly, intent!
Operating from the context of the Genocide Convention, Francesca Albanese, United Nations Special Rapporteur on the Occupied Palestinian Territories directs our attention to the fact that “genocide is defined as a specific set of acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group.”
“Specifically, Israel has committed three acts of genocide with the requisite intent: causing seriously serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, and imposing measures intended to prevent birth within the group.”
Furthermore, “the genocide in Gaza is the most extreme stage of a long-standing settler colonial process of erasure of the native Palestinians.”
So, why does it appear that the ICC avoided including this interpretation in the indictments of Netanyahu and Gallant when the evidence of genocide is clear? Perhaps there is an explanation of the omission. Article III section (e) of the Genocide Convention says quite clearly that complicity with genocide is also a punishable crime.
Having to be forced to indict the leadership in Israel in order to retain any shred of credibility after years of obsequious service to the West, the court had gone far enough and was loath to engage in the next logical step - having to identify and charge the genocide enablers – the United States of America.
The ICC prosecution and judges probably concluded it was wise to pass that on to the International Court of Justice (ICJ) that eventually will have to render a judgement on the South African case charging Israel with genocide along with the court’s own preliminary judgement demanding that Israel cease engaging in any actions that might lead to the conditions of genocide. Israel completely ignored that demand and the U.S. fought and is fighting to pre-empt the court rendering a judgement unfavorable to Israel.
It will be interesting to see how the court handles this issue, especially the issue of genocidal complicity once it is forced to render the obvious, that Israel is conducting a genocide in Palestine.
The position of human rights defenders and anti-colonial and anti-imperialist forces around the world must be unequivocal, without an indictment of U.S. president Joe Biden, Secretary of State Antony Blinken and even Defense Secretary Lloyd Austin, any analysis of Israeli behavior that does not result in a judgement against Israel and prosecution of all of the responsible parties will be seen as more evidence that all of the post-war structures set up by Western imperialism must be completely abandoned and new ones must be constructed.
But we cannot wait for bureaucratic practices of anachronistic international structures reflecting the international balance of power in 1945. The world is very different today, which the defenders of global European white supremacy find impossible to accept. That is precisely why the U.S. along with their European allies and the comprador nations aligned with the dying Western order and imploding U.S. empire are prepared to use whatever means necessary to escape their inevitable loss of global hegemony.
The fantasy that Israel, a colonial project set-up at the beginning of the end of classical colonialism in 1948 could continue its crude colonial racist apartheid system into the 21st century is a case in point. The psychopathology of white supremacy is reflected in the narcissism and disconnection from reality that can result from being the boss for so long.
What Must Be Done?
“Now is the time to throw off all hesitations, open up new fronts of struggle and to launch every protest, demonstration, and anti-imperialist action – from the ballot box to the barricades – as an act to deepen the crisis of imperialism.
Every protest against police and white civilian murder of our people, every mass mobilization to demand the end to the cruel, bloody economic war against Venezuela, Zimbabwe, Cuba, Iran, Korea and Russia must be seen as our part to turning the imperialist wars into wars against imperialism!” (Omali Yeshitela, Chair of the Black is Back Coalition and member of Uhuru 3, just recently convicted in Federal court for conspiracy)
The Western world in its present form is finished. But it will not go quietly into the night. It must be crushed, its power stripped away and neutralized in a way that it can never be the threat to collective humanity that it poses today.
That is going to take a horrific fight. Palestinians are making the sacrifices that are required when the fight is about individual and collective dignity. The people of Lebanon are also going to have to make decisions regarding what they are willing to sacrifice just as the Vietnamese, the Koreans, Chinese, Algerians, and South Africans have done, and the colonized peoples of the U.S. must do.
As Francesca Albanese correctly and courageously said “colonial amnesia of the West has condoned Israel's colonial settler project”, adding that “the world now sees the bitter fruit of the impunity afforded to Israel. This was a tragedy foretold.”
What is also foretold is that if we do not defeat the U.S./EU/NATO Axis of Domination our sojourn on this planet will come to an abrupt and final end much more quickly than any of us realize.
Therefore, our task is clear and must be clearly articulated.
Ajamu Baraka is the Chairman of the Coordinating Committee of the Black Alliance for Peace and an editor and contributing columnist for the Black Agenda Report. Baraka serves on the Executive Committee of the U.S. Peace Council and leadership body of the U.S.-based United National Anti-War Coalition (UNAC) and the Steering Committee of the Black is Back Coalition.
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