Israel is moving forward with its long-planned ground offensive in the southern Gaza city of Rafah which will result in massive civilian deaths and injuries, despite warnings from the Biden administration, governments around the world and international humanitarian aid organizations. Rafah is crowded with over 1 million displaced Palestinian civilians who’ve sought refuge there from the war that has thus far killed more than 35,000 Gaza residents, mostly women and children. As 300,000 refugees fled the city, Israeli airstrikes have killed dozens of people and the IDF’s capture of Rafah’s Egyptian border crossing has halted the flow of humanitarian aid, where the population is on the brink of widespread famine.
Because of Israel’s escalation of violence against the people of Gaza, Egypt says it will formally join the case filed by South Africa against Israel at the International Court of Justice, that accuses Israel of committing genocide. At the same time, South Africa is asking the ICJ to demand Israel immediately withdraw from Rafah and “cease its military offensive.”
Meanwhile, Israeli officials are expressing increased concern that the International Criminal Court (ICC) is preparing to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and other military officials, in addition to Hamas leaders responsible for the Oct. 7 terrorist attack on Israel that killed 1,200 and kidnapped 240 Israeli hostages. Between The Lines’ Scott Harris spoke with Michael Lynk, associate professor of law at the University of Western Ontario, Canada, and former U.N. special rapporteur on human rights in the Palestinian Territories from 2016 to 2022. Here he assesses reports that the International Criminal Court is preparing to issue arrest warrants for senior Israeli and Hamas officials.
MICHAEL LYNK: The International Criminal Court deals with allegations of war crimes or crimes against humanity with respect to individuals. It doesn’t try countries. It tries individuals including political and military leaders. And it’s had an open file on Palestine since January of 2015. The court in February of 2021 said that the court does have jurisdiction over allegations of war crimes and crimes against humanity in the occupied Palestinian territory, East Jerusalem, the West Bank and Gaza. And even though Israel is not a signatory to the Rome statute of the international criminal court, the state of Palestine is, and therefore the court can hear cases with respect to allegations of war crimes, crimes against humanity, or genocide against individuals committing these crimes as to what’s been going on for the last seven months in Gaza. I’ve heard the same rumors as you that arrest warrants are potentially going to be issued very shortly against both leaders of Hamas and leaders of Israel.
This, I must tell you, probably does keep some Israeli military and political leaders up at night. While it’s unlikely that Israel, in fact is almost certain that Israel would never surrender any of its leaders to the Hague to be tried on these kind of charges, it would mean that they could no longer travel to most of Europe because virtually every country in Europe has signed onto the Rome statute and they’re obligated as part of their membership to arrest anybody for which arrest warrants have been issued for alleged violations of the Rome statute of 1998. So that would significantly tarnish Israel’s reputation. It would significantly diminish, I think, Israel’s standing and the inability of Israeli leaders to be able to travel.
SCOTT HARRIS: Professor Lynk, as you and many of our listeners are aware, the Biden administration has complained that the International Criminal Court lacks jurisdiction in the case against Israel. Actually, the Biden administration has lodged a protest with the International Criminal Court and members of Congress have also raised the specter of imposing sanctions on the International Criminal Court.
I wondered if you’d comment on that in light of the United States supporting the International Criminal Court’s jurisdiction when it comes to Russia’s invasion of Ukraine and very supportive of a warrant being issued for Russian President Vladimir Putin in the case of his nation’s aggression against the sovereign state of Ukraine.
MICHAEL LYNK: Much of what used to be known as the Third World, now the Global South sees a very distinct double standard in the way in which the global North in general, but particularly the United States, has chosen what international laws to obey and enforce, and what international laws are to be ignored and scorned in the way in which it supported the ICC, the International Criminal Court with respect to its investigation into Russia’s invasion and occupation of parts of Ukraine.
And its complete support on the other hand for Israel, notwithstanding this January ruling on plausible genocide from the ICJ; notwithstanding the very real warnings being given to Israel and the Hamas by the prosecutor of the ICC Kareem Khan with respect to how this war in Gaza has been has been conducted.
I’m particularly astonished by the letter that you referred to that was signed by 12 American senators the last several weeks, written to the International Criminal Court prosecutor saying that, you know, we’re watching you, you know, how dare you even consider bringing charges or arrest warrants with respect to our great ally Israel.
There’s actually a provision in the Rome statute of 1998, which makes it an international criminal offense to interfere with or to threaten officers of the of the court in the conduct of their duties. Remember, international law is not meant to be a menu a la cart where you get to choose what you have for lunch off of a cart going by you. International law applies at all times to all people in all situations.
And if you accept that international law may apply to your enemies and you want to cheer about it, that’s great. But if it applies to your allies, then you have to also say, you know, international law is a poisoning chalice that we will all bring to our lips, to use the words of Mr. Justice Robert Jackson, the American prosecutor at the Nuremberg Trials in 1946, Israel would not have been able to conduct this war in the defiance of international opinion, in the defiance of UN resolutions, without the strong diplomatic support of the United States and the strong military support of the United States.
President Biden would say, tomorrow, Israel, Netanyahu, this war is over. Stop it now. Israel would stop, would have to stop it now. But there is a provision in this 1948 Genocide Convention Article Three, that which prohibits complicity in genocide. So if what is happening in Gaza, is an act of genocide by Israel, then the American steadfast support for Israel in terms of weapons replacement and in terms of diplomatic shielding, certainly makes it complicit with respect to what’s been going on.
Listen to Scott Harris’ in-depth interview with Michael Lynk (28:45). More articles and opinion pieces are found in the Related Links section of this page.
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