WeeklyWorker

28.11.2024
Accused of war crimes at last

Grand imperial claims

America does not consider itself bound by the ‘law governed world order’. Mike Macnair gives the background to the denunciations of the International Criminal Court’s warrants against Benjamin Netanyahu and Yoav Gallant

On November 21, the International Criminal Court in the Hague issued arrest warrants for Benjamin Netanyahu, prime minister of Israel, and Yoav Gallant, until recently defence minister.1 At the same time and in the same investigation, it also issued a warrant for the arrest of Mohammed Diab Ibrahim Al-Masri, known as ‘Deif’ - a Hamas military commander who is possibly dead, but who, the court opined, may be alive.2

It should be flagged at the outset that this is entirely separate from the litigation by South Africa and other countries against Israel at the International Court of Justice (also at the Hague).3 The ICJ is a part of the United Nations, descending from an older League of Nations institution. It is concerned with disputes between states. The ICC is concerned with criminal prosecution of individuals for crimes under ‘international criminal law’. It was set up in 1998 under the ‘Rome statute’ - which not only established the courts, but also lists the crimes over which it has jurisdiction: in broad terms, genocide, ‘crimes against humanity’, war crimes and (by a 2010 amendment) ‘aggression’.4

The charges against ‘Deif’ are “the crimes against humanity of murder; extermination; torture; and rape and other form of sexual violence; as well as the war crimes of murder, cruel treatment, torture; taking hostages; outrages upon personal dignity; and rape and other form of sexual violence”, All in relation to the October 7 ‘Al-Aqsa flood’ prison breakout from the Gaza concentration camp or besieged territory.

The charges against Netanyahu and Gallant are “the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution and other inhumane acts”. The ICC noted: “The Chamber 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.”

The Israeli state objected to the warrants against Netanyahu and Gallant on two grounds. The first is that the court has no jurisdiction. Israel has not signed up to the Rome statute (nor has the United States). The court asserts jurisdiction on the basis that the acts in question took place on the territory of the state of Palestine, which has signed up to the Rome statute. The Israeli state responds by denying that Palestine is a state, to which the court replies that this claim is premature: under the terms of the Rome statute, they say, the right of states to object to the court’s jurisdiction only arises after an arrest warrant has been issued.5 The second objection is the purely procedural point that the notification of an investigation in the ICC of the situation in the occupied territories, given to Israel on March 9 2021, was insufficiently specific, and that a new notification was required. The court rejects this argument as merely dilatory.6

Like the ICJ decision in January, this one has very limited practical significance. In the first place, the decisions are merely that there are “reasonable grounds to believe” that the individuals against whom warrants have been issued have committed the crimes in question. This is a low standard (think about English law arrests, which use this standard …). Secondly, the court is careful to display ‘even-handedness’ by also issuing a warrant against a Hamas military commander, who may be dead. Thirdly, the court’s rejection of Israel’s claim that it has no jurisdiction, because Palestine is not a state, is merely procedural - that this objection is premature. That is, it is still open to Israel to raise it.

And fourthly and most fundamentally, as I already said, Israel is not signed up to the Rome statute, and neither is the USA. A number of Rome statute signatory states have said that they will arrest Netanyahu or Gallant if they enter their territory, including - after some delay - the UK. But this is at most an inconvenience. (The Hungarian Fidesz regime, in contrast, has said it will not implement the arrest warrant and will invite Netanyahu to visit.)

Symbolic

The decision is nonetheless of symbolic importance - as the ICJ decision in February was. The symbolism is different, though. The ICJ’s was a sharp blow against the claims of the Israeli state, the USA and its supporters (the UK included), and for the Palestine solidarity movement. The war has now dragged on for nine more months; it has spread to Lebanon; and the ethnic-cleansing policy of the Israeli state has become more and more transparent. Under these conditions, for the ICC to have denied a warrant would have amounted to an overt assertion of US and Israeli impunity in relation to ‘international criminal law’.

The symbolic importance, then, does not come from the decision itself, which merely tells us what we already knew: that the conduct of the Israeli state is criminal. It comes, rather, from the reaction of the US and of US-supporting media outlets. Joe Biden said that the decision was “outrageous” and that “whatever the ICC might imply, there is no equivalence - none - between Israel and Hamas. We will always stand with Israel against threats to its security.”7 Republican senators demanded the US impose sanctions on ICC officials, and one even suggested that the US uses force against the ICC (an existing US 2002 act authorises such use of force in the event of US personnel being prosecuted in the ICC).8 Senator Lindsey Graham (Republican, South Carolina) called for sanctions against any country that “aids and abets” the ICC.9

US political actors (and the Israeli regime) and their political and media supporters elsewhere claim that there is no ‘moral equivalence’ between Israel and Hamas, and that Israel is merely exercising the right to self-defence. The ‘moral equivalence’ argument exactly reverses the moral inequivalence, by pretending that the history of the Gaza war began on October 7 2023. In reality, Israel (and its US sponsor) responded to the election of a Hamas majority in the Palestinian legislative council in 2006 first by supporting an attempted coup by Fatah against Hamas in Gaza, and then, when that failed, putting Gaza under a siege that has effectively converted the whole territory into a very large concentration camp. October 7 2023 was merely a large-scale and temporarily unusually successful attempted prison-break. That atrocities were committed in this situation is inherent in the nature of war, as can be seen from (for example) Allied war crimes in World War II.10 They pale into relative insignificance by comparison with the Israeli state’s deliberate revenge-obliteration of Gaza. So Israel and Hamas are not morally equivalent, true: both are guilty of crimes, but Israel’s crimes are much worse, especially given the context of Hamas’s crimes.

Equally, Israel does not have the right of self-defence in relation to its continued occupation of territories since 1967. Assume for the sake of argument that the Six Day War in 1967 was a war of self-defence (an argument that depends on pre-emptive use of force in response to threats counting as self-defence, which is rather questionable). But, on this assumption, as soon as Israel started to annex land and to plant settlements in the occupied territories, it became (to draw an analogy with English law) a trespasser ab initio (from the beginning) - as where an original lawful entry on land is turned into trespass by damaging the property. Israel thus converted its self-defence (if it was self-defence) into a war of aggression in violation of the Charter of the Nuremberg War Crimes Tribunal and the UN Charter.11 Hence, until it revokes the annexations and withdraws the settlements, Israel has no more right to self-defence than a burglar has against the householder’s efforts to expel him.

The very low underlying plausibility of these claims from the US, its Israeli settler-colony and their supporters is reflected in a recent intensification of efforts to silence dissent from them: for example, with the British government’s use of anti-terror legislation against pro-Palestinian voices.12

Imperial

The US response to the ICC ruling is, then, an increasingly explicit claim that the US as such is the absolute sovereign emperor of the world: that it is, as was said of the Roman emperor, princeps legibus solutus - “the emperor is not bound by the statutes” - and that quod principi placuit legis habet vigorem, that “what pleases the emperor has the force of statute”.13 The US as absolute sovereign of the world is not to be bound by international law (as it showed already by invading Iraq) and as absolute sovereign of the world is (as the emperor Justinian in 533 CE said of himself14) the only one entitled to make and interpret international law.

This is not a complete novelty. I have already referred to the 2002 “Hague invasion act” directed against the ICC.15 The USA and its ‘coalition of the willing’ invaded Iraq without UN authorisation, and John Bolton, the US ambassador to the UN in 2005-06 and national security advisor in 2018-19, in 2008 proposed defunding the UN to force it to vote in compliance with US wishes.16 However, the intensified threats round the ICC amount to increasingly strident claims of US imperial authority.

We have to see these increasingly strident claims alongside other acts of US unilateralism. In spite of talk of a “rules-governed world order”, the Biden administration has continued the first Trump administration’s trade war with China - in effect committing repudiatory breaches of the general agreement on tariffs and trade (GATT). It has dragged the Europeans into war with Russia in Ukraine, and probably bombed the Nord Stream gas pipelines in order to stop Russian gas supplies and force Germany to buy liquified natural gas from the US and its client states. And so on.

The rise of the US to world dominance was accompanied by claiming that its hegemony was that of “national self-determination” - first against Austria-Hungary and Russia (but not against Britain and France) in 1918-21, then against Britain and France in the 1950s-60s. And the US claimed to offer a “law-governed world order”, starting with the League of Nations (which Woodrow Wilson promoted, but the US failed to join), and then, from 1944, the United Nations. With the fall of the USSR in 1989-91, US power seemed to be at its apogee, and the UN was celebrated, along with other international institutions (the International Monetary Fund and World Bank; the World Trade Organisation; and so on).

But, underlying the triumph, the US has been in relative decline as an industrial power, as others began to catch up. And, indeed, already from the later 1970s after the US scuttle out of Vietnam, it became clear that the declining US could not in fact create order - even at the level the old European empires had created order for capital investment - but only inflict destruction and state failure on its enemies.

More and more, it is driven to the tag said to have been beloved of the Roman emperor, Caligula: Oderint, dum metuant (‘Let them hate me, so long as they fear me’). The threats against the ICC and anyone who cooperates with it are emblematic of this evolution.

  1. www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges.↩︎

  2. www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-issues-warrant-arrest-mohammed-diab-ibrahim.↩︎

  3. There is superficial discussion in ‘Symbolic victory in the Hague’ Weekly Worker February 1: weeklyworker.co.uk/worker/1476/symbolic-victory-in-the-hague.↩︎

  4. The statute is linked at www.icc-cpi.int/resource-library/core-legal-texts.↩︎

  5. www.icc-cpi.int/court-record/icc-01/18-374.↩︎

  6. www.icc-cpi.int/court-record/icc-01/18-375.↩︎

  7. www.bbc.co.uk/news/articles/c704y7gwr95o.↩︎

  8. www.aljazeera.com/news/2024/11/21/how-us-politicians-responded-to-netanyahus-icc-arrest-warrant.↩︎

  9. www.msnbc.com/the-reidout/reidout-blog/lindsey-graham-icc-arrest-warrant-netanyahu-israel-rcna181735.↩︎

  10. A convenient short reference is at en.wikipedia.org/wiki/Allied_war_crimes_during_World_War_II.↩︎

  11. www.un.org/en/about-us/un-charter/full-text - articles 1(1) and 2(4).↩︎

  12. Eg, www.middleeasteye.net/news/uk-drops-terrorism-case-against-academic-after-raiding-home-over-tweets; 5pillarsuk.com/2024/09/04/pal-action-uk-is-weaponising-anti-terror-laws-against-pro-palestine-voices; skwawkbox.org/2024/11/22/censoring-palestine-new-film-with-ken-loach-exposes-uk-govts-war-on-pro-palestinian-dissent; www.middleeastmonitor.com/20241106-in-the-uk-govt-crackdown-on-pro-palestine-support-it-may-turn-to-lawfare-against-political-dissidents.↩︎

  13. In Justinian’s Digest 1.3.31; and Institutes 1.2.6 - both from the jurist Ulpian (c170 -223 or 228 CE).↩︎

  14. Constitution Tanta, confirming his Digest (533 CE), section 18.↩︎

  15. en.wikipedia.org/wiki/American_Service-Members’_Protection_Act.↩︎

  16. J Bolton and R Holbrooke, ‘Reforming the United Nations’ Brown Journal of World Affairs Vol 14, pp11-21 (it should be noted that Bolton’s and Holbrooke’s contributions were separate and opposed).↩︎