Crimes of Genocide, War Crimes, the ICC, and Double Standards

International Criminal Court prosecutor Karim Khan (Photo: UN International Criminal Court Tribunal for the former Yugoslavia's photostream/Flickr/CC BY 2.0)

International Criminal Court prosecutor Karim Khan (Photo: UN International Criminal Court Tribunal for the former Yugoslavia's photostream/Flickr/CC BY 2.0)

Published May 23, 2024


Jaya Josie, Advisor China Africa Center, Zhejiang University International Business School (ZIBS); Adjunct Professor University of the Western Cape and University of Venda

Breaking news on the weekend 18/19 May was that the foreign minister of Jordan called out Israel’s invasion, killing and starving of civilians in Gaza a war crime. On 20 May 2024, the Prosecutor of the International Criminal Court (ICC) called on the judges of the ICC to issue warrants of arrests for Israeli Prime, Minister Benjamin Netanyahu, Defence Minister Yoav Gallant and Hamas leaders, Yahya Sinwar and two others.

This call for warrants by the ICC comes two years after the assassination of Aljazeera journalist Shireen Abu Akleh in the West Bank and after months of calls by he international community for action against the perpetrators of the targeted assassination of the journalist. The news may seem significant to some but appears cynical to many others.

In the meantime the Israeli leadership is attacking the ICC, and members of the USA government and Congress are making threats against the ICC prosecutor and the staff of the ICC.

The Israeli government is claiming the right to self-defence against the Hamas attack on 7 October 2023. However, in February 2024, China’s representative at the International Court of Justice (ICJ), Ma Xinmin, refuted this claim and argued that Israel is occupying Palestine and therefore Palestinians have a greater claim to self-defence than Israel. He went on to further assert that for Palestinians.

justice has long been delayed, and it should not be denied. It is in this sense that the ICC prosecutor’s request for warrants of arrest for Israeli perpetrators for war crimes in Gaza cannot have the same legitimacy as the claim of self-determination and the struggle against colonialism by the Palestinians.

It is for this reason that also requesting warrants of arrest for the leaders of Hamas is the height of cynicism.

Ma Xinmin elaborated that it was fifty-seven years since Israel began its occupation of Palestine and during this time the occupation was deemed unlawful and this is still the current status of the Occupied Palestinian Territories. China’s position in exposing the settler colonial nature of the Israeli occupation has a long history and can be traced back to Chairman Mao Zedong’s comments to a Palestine Liberation Organization delegation visiting Beijing in 1965. Mao Zedong remarked, “Imperialism is afraid of China and of the Arabs. Israel and Formosa (now Taiwan) are bases of imperialism in Asia. You are the gate of the great continent and we are the rear. They created Israel for you, and Formosa (now Taiwan) for us. Their goal is the same.”

Ma Xinmin reiterated that in pursuit of the right to self-determination Palestinians have the right to use force to resist foreign oppression and establish a Palestinian state. This right is enshrined in the 1982 UN General Assembly Resolution 37/43 that reaffirms the legitimacy of the struggle for independence, territorial integrity, national unity, and liberation from foreign domination and foreign occupation by all available means, including armed struggle.

Following the ongoing attacks and killings of civilians in Gaza and the West Bank on16 May 2024, South Africa filed another urgent request for additional provisional measures and the modification of previous provisional measures for Israel to immediately stop the attacks on Rafa in the Gaza and open up humanitarian corridors for civilians to access food, water and other humanitarian assistance. Since January 2024, South Africa has already made four such requests in keeping with the Application on the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip.

South Africa’s Minister of International Relations and Cooperation said that it was utterly unacceptable that Israel continued to disregard the rulings by the International Court of Justice (ICJ) as well as UN Resolutions and continues its unrelenting bombardment of Gaza with impunity.

Despite this ruling of the ICJ the USA government has defended Israeli attacks in Gaza and denied accusations of genocide.

In fact in his first reaction to the ICC request for warrants of arrests for the Israeli leaders the USA president declared that the ICC action was outrageous and that there is no genocide in the Gaza. South Africa’s request to the ICJ was motivated by Israel simply ignoring the ICJ’s ruling which granted South Africa’s Urgent Request of March 2024 for provisional measures to prevent Israel from causing irreparable harm to the rights invoked by South Africa under the 1948 Genocide Convention in respect of the ongoing siege of Gaza. The Court was unambiguous when it agreed with South Africa’s assertion that the situation in Gaza had deteriorated significantly since the Court’s Order of 26

January 2024, as a result of Israel’s failure and responsibility to comply with the Court’s rulings.

Despite the international outrage at what is taking place in Gaza and the West Bank Israel is persisting with its relentless attacks on innocent civilians, hospitals, humanitarian aid workers, journalists and UN staff. For Israel and its western backers, the international outrage is reaching alarming proportions as Ireland, Norway and Spain become the first members of the European Union (EU) to formally recognise the Palestinian State joining 143 other UN members.

The international reactions of opprobrium, outrage and disgust towards Israel’s attacks against Palestine from the global majority represented in the UN is reminiscent of the reactions of a similar UN majority towards apartheid South Africa in 1982 when the UNGA passed UN Resolution 37/43.

The passing of this resolution was the beginning of the end for the apartheid regime in South Africa and eventually led to the one united South African State. In 1982 the campaign against the Apartheid regime in South Africa was in full swing all over the world. South African sports competitors were not welcomed, and in some cases, banned from international sports as a means of putting pressure on the South African government to remove apartheid.

In South Africa in particular there were mass demonstrations and strikes and a resurgence in armed struggle by the liberation movement.

In September 1982 thousands of Palestinians living Beirut in the refugee camps in Sabra and Shatila were massacred by Lebanese right wing allies of the Israeli government led by Ariel Sharon. Much like what is happening across the world there was international outrage and at that time the USA ordered Israel to withdraw from Lebanon.

What was even more significant was the mass protests in Israel itself that led to the resignation of Ariel Sharon and his cabinet following an Israeli led enquiry. Crimes of Genocide, War Crimes, the ICC, and Double Standards However no perpetrators of the massacre was ever charged or held accountable. Today Israelis are again mobilising against the Netanyahu government, but this does not mean that there will be any accountability.

At the UN South Africa concurred with the its Special Rapporteurs on the right to health and the situation of human rights in the Palestinian territories. Israel’s impunity and exceptionalism was called into question in view of the binding UN Resolution Security Council Resolution 2728, which called for an immediate ceasefire in Gaza. Israel has ignored the call for a ceasefire and accountability and the international community is only now waking up to the horrors of more massacres in the Gaza and the West Bank.

The ICC Prosecutor’s requests for arrests warrants for Israeli and Hamas leaders ignores the UN Resolution 37/43 that recognises the rights of Palestinians to use armed struggle in their quest for self-determination. The ICC request also ignores the evidence of the mass killings of civilians, mass graves that indicates war crimes, crimes against humanity, murder and extermination and genocide under Article 6, 7 and 8 of the Rome Statute of the ICC.

In addition the Prosecutor made no mention of the violations of the 1949 Fourth Geneva Convention on the protection of civilians and customary international humanitarian law. This seems to be a double standard and does not serve the interests of justice and will not compel Israel to call for a ceasefire and stop the killings of Palestinians.