To continue the Gaza genocide, Israel and the US must destroy the laws of war

An Israeli army battle tank operates in southern Israel near the border with the Gaza Strip on 29 May 2024 (AFP)

The world’s two highest courts have made an implacable enemy of Israel in trying to uphold international law and end Israeli atrocities in Gaza.

The ICC prosecutor made clear that he understands all too well what is at stake if the ICC and ICJ turn a blind eye to the Gaza genocide, as Israel and the US want. He told Amanpour:

"If we don't apply the law equally, we will disintegrate as a species."

Separate announcements last week by the International Court of Justice (ICJ) and the International Criminal Court (ICC) should have forced Israel onto the back foot in Gaza.

A panel of judges at the ICJ – sometimes known as the World Court – demanded last Friday that Israel immediately stop its current offensive on Rafah, in southern Gaza.

Instead, Israel responded by intensifying its atrocities.

On Sunday, it bombed a supposedly “safe zone” crowded with refugee families forced to flee from the rest of Gaza, which has been devastated by Israel’s rampage for the past eight months. The air strike set fire to an area crammed with tents, killing dozens of Palestinians, many of whom burnt alive. A video shows a man holding aloft a baby beheaded by the Israeli blast.

Hundreds more, many of them women and children, suffered serious injuries, including horrifying burns.

Israel has destroyed almost all of the medical facilities that could treat Rafah’s wounded, as well as denying entry to basic medical supplies such as painkillers that could ease their torment.

This was precisely the outcome US President Joe Biden warned of months ago when he suggested that an Israeli attack on Rafah would constitute a “red line”. But the US red line evaporated the moment Israel crossed it. The best Biden’s officials could manage was a mealy-mouthed statement calling the images from Rafah “heart-breaking”.

Such images were soon to be repeated, however. Israel attacked the same area again on Tuesday, killing at least 21 Palestinians, mostly women and children, as its tanks entered the centre of Rafah.

‘A mechanism with teeth’

The World Court’s demand that Israel halt its attack on Rafah came in the wake of its decision in January to put Israel effectively on trial for genocide, a judicial process that could take years to complete.

In the meantime, the ICJ insisted, Israel had to refrain from any actions that risked a genocide of Palestinians. In last week’s ruling, the court strongly implied that the current attack on Rafah might advance just such an agenda.

Israel presumably dared to defy the court only because it was sure it had the Biden administration’s backing.

UN officials, admitting that they had run out of negatives to describe the ever-worsening catastrophe in Gaza, called it “hell on earth”.

Days before the ICJ’s ruling, the wheels of its sister court, the ICC, finally began to turn. Karim Khan, its chief prosecutor, announced last week that he would be seeking arrest warrants for Israel’s prime minister, Benjamin Netanyahu, and his defence minister, Yoav Gallant, along with three Hamas leaders. Both Israeli leaders are accused of war crimes and crimes against humanity, including attempts to exterminate the population of Gaza through planned starvation.

Israel has been blocking aid deliveries for many months, creating famine, a situation only exacerbated by its recent seizure of a crossing between Egypt and Rafah through which aid was being delivered.

The ICC is a potentially more dangerous judicial mechanism for Israel than the ICJ. The World Court is likely to take years to reach a judgement on whether Israel has definitively committed a genocide in Gaza – possibly too late to save much of its population. The ICC, on the other hand, could potentially issue arrest warrants within days or weeks.

And while the World Court has no real enforcement mechanisms, given that the US is certain to veto any UN Security Council resolution seeking to hold Israel to account, an ICC ruling would place an obligation on more than 120 states that have ratified its founding document, the Rome Statute, to arrest Netanyahu and Gallant should either step on their soil.

That would make Europe and much of the world – though not the US – off-limits to both.

And there is no reason for Israeli officials to assume that the ICC’s investigations will finish with Netanyahu and Gallant. Over time, it could issue warrants for many more Israeli officials. As one Israeli official has noted, “the ICC is a mechanism with teeth”.

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