Qamar Taleb
Khan reportedly conducted a secret visit to the region on 17 November during which he inspected the southern Israeli communities without visiting the other side of the perimeter fence where 2,3 million people have been subjected to what may amount to systematic war crimes and crimes against humanity. – Euro-Med
On October 30, 2023, Karim Khan, Chief Prosecutor of the International Criminal Court (ICC) released a statement addressing the Israeli war on Gaza with a tint of poetry: “The laws that we have, the Rome Statute that I operate under, requires that innocent lives are particularly protected. And what is most important is that the application of the law is not theoretical. People have heard promises for a long time. There have been enough words to fill libraries. In my view, the protections afforded by the law apply equally regardless of one’s race and one’s religion, one’s nationality, one’s gender.” And he’s absolutely right, but the latter is only part of the words filling libraries if no action is taken by the Court.
Palestinians have heard lots of fake promises since the Nakba as the world has been watching them get brutally murdered every day. Politicians, activists, and human rights organizations all watched silently, and the International Criminal Court’s silence was the loudest.
Ten years have passed since Palestine accepted the jurisdiction of the ICC under Article 12(3) of the Rome Statute, including the occupied territory of the eastern part of al-Quds. On January 16, 2015, the prosecutor announced the opening of a preliminary examination into the war on Palestine to determine whether the criteria for investigation were met. It took the court almost 5 years to rule on the criteria. By then, Fatou Bensouda was assigned as the new chief prosecutor of the court, and she announced that the criteria for the investigation had been met, however, the US sanctioned her for taking this decision. And since nothing is allowed to go smoothly for Palestinians, Bensouda herself requested the Pre-Trial Chamber I to clarify the territorial scope of the Court’s jurisdiction, which took another year of confirmation followed by loud silence and lack of action, unlike the war in Ukraine, which, to the court, seemed to not require any second thought as it took the court around 24 hours only to launch an investigation.
On November 17, 2023, in response to the inhumane Israeli genocide in Gaza on October 7 of the same year, South Africa, Bangladesh, Bolivia, Comoros, and Djibouti submitted a referral to the court regarding the war on Gaza in which the Prosecution confirmed it is “investigating”. The Republic of Chile and the United Mexican States also submitted a referral to the Court on January 18.
Mirror, mirror on the wall, who’s the guiltiest one of all?
Article 25 (1) of the Rome Statute states that the court shall have jurisdiction over natural persons under this Statute. Part of those persons are commanders and other superiors who are often the ones tried in front of the court due to the crucial and leading role they play in war. Article 28(a) of the Statute talks about the responsibility of these commanders and superiors stating that the military commander or person effectively acting as such shall be criminally responsible for crimes within the jurisdiction of the Court committed by any subordinate under their effective command and control or effective authority. However, two conditions should be met, the first being that they knew or, owing to the circumstances at the time, should have known that the forces were committing such crimes, and the second condition is that the commander or person acting effectively as one failed to take all necessary and reasonable measures within their power to prevent these crimes, including submitting the matter to competent authorities.
So here is raised the question of who is the military commander or person effectively acting as such in “Israel”? As the occupation has tried to build “its own country” on the blood and rubble of Palestinians and their homes, it created a legal system and a government sadly acknowledged by many countries internationally. According to The Israel Democracy Institute, Basic Law specifies “the political authority over the armed forces,” stating that the political institution entrusted with controlling the occupation forces is the occupation government. The minister in charge of the forces on behalf of the latter is the Minister of Security. This means that the minister of security is only responsible for running day-to-day operations, but the occupation government is in charge of the occupation forces’ broader strategic decisions.
This is further confirmed by article 40 of the occupation’s Basic Law, which states that the occupation government should decide when “Israel” goes to war or launches “a significant military operation, which is liable to lead, at a level of probability close to certainty, to war.” Historically, Israeli occupation governments have authorized explicitly or implicitly the prime minister, acting together with the minister of security (and sometimes with the minister of foreign affairs), to approve military operations short of war or action that might lead to war. Hence, this makes Benjamin Netanyahu, the current Prime Minister of the occupation’s government, the person effectively acting as a military commander.
As for the conditions set in Article 28(a) of the Rome Statute, with regard to whether Netanyahu knows or, owing to the circumstances since October 7, in this case, should have known that the forces were committing genocide, crimes against humanity, and war crimes, it is a given fact by now that this is the case as the numerous documentations of Israeli crimes are all over social media and were even showcased in front of the entire world at the International Court of Justice in the South Africa v. “Israel” case.
Not only that, but Netanyahu in several statements has also incriminated himself and insisted up until these moments that he will only rest when there is only one “state”, that is “the state of Israel.” He is refusing any call for a ceasefire despite all the pressure being put on him by settlers. This, in turn, also confirms that the second condition of the specified commander failing to take all necessary and reasonable measures within their power to prevent these crimes definitely applies as it is literally in Netanyahu’s sole hands to stop the entire genocidal war on Palestinians that even his so close allies, the West, almost begged him to opt for, calling for a “two-state solution” and a ceasefire.
If Netanyahu is trying to think of a way out by trying to point fingers at the minister of security or any other subordinate of his, Article 28(b) sends its not-so-warm regard his way. It states that a superior is criminally responsible for crimes committed by subordinates under their effective authority and control under three conditions.
The first is that the superior knew or disregarded information clearly indicated to them about said crimes, the second is that the crimes concerned are within the superior’s effective responsibility and control, and the third is that the superior failed to take all necessary measures. And we proved all of these conditions above.
The principles of IHL do not matter for “Israel”
One of the main principles of International Humanitarian Law (Law of War) is the principle of distinction, which states that all parties of a conflict should at all times distinguish between civilians and combatants and between civilian objects and military objectives and should only direct their operations on military objectives.
Since October 7, Israeli occupation forces have been using weapons, such as white phosphorus, which not only lacks distinction but is also severely detrimental to civilians and is restricted under IHL. White phosphorus when exposed to air burns at extremely high temperatures and starts fires in the areas in which it is released causing severe environmental damage and leading to respiratory damage, organ failure, and extreme burns.
Another weapon being used is “Habsora” (Hebrew for “The Gospel”), which is built on AI and can generate targets almost automatically at a very high unprecedented rate. This weapon allows the IOF to track Hamas’ positions and can even calculate an estimation of deaths before the attack. Hence, this allows accurate yet widespread targeting. However, it is only being used by the IOF to target residential homes, according to many testimonies.
A testimony from an Israeli official confirmed that the occupation has used inappropriate munitions during its attack on al-Maghazi Refugee Camp. Research by the United States Office of the Director of National Intelligence confirmed the latter, stating that 40-50% of the munitions being used in Gaza have been unguided as they are inaccurate and widespread.
The occupation has also been using bunker buster bombs, which carry a warhead weighing more than 900kgs, as well as JDAMs, which use GPS to guide bombs and improve their accuracy only under proper guidance. However, an Amnesty International investigation confirmed that US-made JDAMs were used by the IOF to bomb homes in Gaza, killing 43 members of two families in one incident.
So why are the Israeli occupation forces using such weapons when it has shown the world in martyr Saleh al-Arouri’s assassination in Beirut that it has high-accuracy weapons? They managed to target the martyr in a single apartment in a very crowded area, causing minimal casualties, killing those in the direct vicinity of al-Arouri, and in plain sight. Have you heard of the saying: “If he wanted to, he could?” Well, had the Israelis wanted to limit civilian casualties, they could have easily.
Another very important principle in IHL is the principle of proportionality, which prohibits attacks on military objectives that are expected to cause “incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination of thereof, which would be excessive in relation to direct military advantage anticipated.”
Since October 7, the IOF have bombed more than 14 hospitals in Gaza, including Al-Nasser Medical Complex, the Indonesian Hospital, Kamal Adwan Hospital, and Al-Amal Hospital, to name a few. At the beginning of these attacks, they claimed that these hospitals were “hiding Hamas militants,” which is a nonsense argument, because even if they were, the amount of damage caused to civilians outweighs by miles any military advantage, especially amid the siege on Gaza and the collapsed health sector.
One could talk for days about all the violations of IHL and crimes against humanity “Israel” has been committing since October 7. Its occupation forces are deliberately and perpetually targeting shelters they claim to be “safe zones”, be they schools, universities, or even UN headquarters. They are using starvation as a method of warfare and opening fire from quadcopters on all Palestinians attempting to seek aid while simultaneously targeting aid workers. They have cut all forms of communication in Gaza for more than 8 consecutive days to an extent where ambulances and civil defense workers were unable to navigate.
Bodies of thousands of martyrs remain under the rubble, hospitals have turned into morgues, dangerous diseases like Hepatitis A are spreading, more than 11,000 children have been killed, pregnant women have no means for a safe pregnancy or even enough nutrition, and detainees are being tortured. All of these horrible crimes are documented by International Organizations of high credibility to the International community. The Euro-Med Human Rights Monitor, Amnesty International, UNRWA, WHO, OCHA, and many more have spoken up providing evidence.
Today marks the 111th day since the Israeli genocide in Gaza began, more than 25,900 Palestinians have been martyred and more than 64,000 others have been injured. Yet, Mr. Khan is still asking for more evidence. What more “evidence” does one need amid what has been officially labeled as “the deadliest war in history?” So Mr. Khan, in your own words, Palestinians have heard promises for a long time, and your words seem to be just that.
INTERNATIONALIST 360° 