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ICC and Israel: Exposing the failure of the international political system

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By Madi Jobarteh

It is indeed a significant decision but long overdue that the ICC has now expressed its intention to seek arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his defense minister Yoav Gallant and Hamas leaders for war crimes and crimes against humanity. The need to restrain individuals, governments, and organizations, if they cannot do for themselves from harming others cannot be over-emphasized. The blatant and indiscriminate use of violence must not be entertained in a civilized society for any reason. Hence the decision by the ICC Prosecutor Karim Khan to seek indictments against Israeli and Hamas leaders is indeed welcome.

This decision is positive in many ways. In the first place, it tells Israeli leaders that they do not have the absolute right and power to do as they wish. While Israel would never have brought its own soldiers and citizens to justice for their acts of violence against Palestinians, the ICC decision makes them realize that someone will hold them accountable. Therefore, the decision will place a sobering realization on them that they do not have unchecked power to act anyhow. Contrary to the rhetoric that Israel is a democracy, their actions in the Occupied Palestinian Territories undermine every right and rule in democracy thereby exposing the State of Israel as a terrorist entity as it employs violence for political reasons or objectives.

In terms of Hamas, the decision similarly wakes them to the fact that resisting occupation provides no carte blanche to commit atrocities regardless. It brings them to the realization that they must employ means that are within the limits of the law even when they seek self-determination. Yes, liberation wars including the American War of Independence (115 – 1783) had seen the use of unimaginable violence and sometimes against non-combatants. But that perception must be challenged that resisting difficult political situations such as colonialism, occupation or foreign aggression must be conducted in ways that do not injure human dignity but uphold human rights and humanitarian law.

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The decision by the ICC indeed came quite late after more than 35 thousand Palestinians and over one thousand Israelis were killed. To me, the question that must be raised is why should the situation in Israel and Occupied Palestinian Territories reach this point in the first place? Answering that question exposes the significance and relevance of the ICC decision. The situation in the Occupied Palestinian Territories has been raging on for the past 76 years. How therefore could the world allow such a situation to remain and fester to the point that it is now considered to contain elements of war crimes, crimes against humanity, ethnic cleansing, and genocide?

The reason I think the ICC decision is positive is because it will indeed lead to gains that the long running political processes have failed to achieve. Thus, the ICC decision is both an indictment of those political institutions, processes, and leaders and at the same time a blessing for the world given the historical antecedents and the potential benefits it could generate. It is an indictment as Karim Khan’s decision exposes the failure of the international political system that created a bad situation as it is and then failing to solve it after so many decades. On that score it is pertinent that we look back on history and the efforts undertaken therein.

It was on 2nd November 1917 when the British with support from fellow European powers in the League of Nations declared a home for Jews in Palestine in its Balfour Declaration. Writing to Lionel Walter Rothschild, a leader of the Anglo-Jewish community in London, the British Foreign Secretary James Arthur Balfour said in the letter known as the Balfour Declaration,

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“His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people and will use their best endeavors to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.”

As I emphasized with the underlined words in the above statement, it is obvious that the UK and by extension European Powers and the League of Nations had an obligation by virtue of the Declaration to ensure that there was peaceful settlement for both Jews and Arabs. This could have been achieved by either supporting the establishment of a single state in which both Jews and Arabs cohabit in peace and justice or there were two states for Jews and Arabs separately and each living in peace with each other. Unfortunately, not only have the UK and the European powers/League of Nations failed to support both Jews and Arabs to build a peaceful society, but they instead have continued to arm Israel to damage the rights and dignity of Palestinians all this while.

At the end of the Second Imperialist War in 1945 (erroneously called Second World War) Western Powers particularly realized that it was inevitable and imperative that the world needed a new international system, a new trajectory. Not that they believed in freedom and democracy for all peoples of the world, but the war had left them in such a bad situation that it was obvious that colonialism and imperialism as they were cannot remain the same. It was therefore imperative that the world needed a new system that would not only replace the imperialist League of Nations but more importantly, recognize the inherent rights and dignity of humankind and put in place durable mechanisms to ensure lasting peace and sustainable development across the world. Hence when the victorious powers of the war and others met in San Francisco in 1945, the creation of the United Nations was easy and fast to usher in a new era of universal human rights and peace.

And so, at the heart of the objectives and purpose of the United Nations were human rights, justice and peace as espoused in Article 1 of the UN Charter. The new organization went further in Article 2 to express its principles at the heart of which were sovereign equality of members, nonviolence, non-aggression, and peaceful means of solving disputes. The tacit objective or character of these principles is self-determination. That all nations and people should be free, independent and determine their own lives to be able to uphold and live in peace with oneself and with each other. To further express its vision and commitment to the establishment of a new era of human rights, the UN created the Universal Declaration of Human Rights in 1948.

Given that the formation of the UN was hugely necessitated by the atrocities of the war which saw six million Jews annihilated in Nazi Germany, the need for the protection of Jews was therefore necessary and urgent. Hence in 1947, the UN General Assembly through Resolution 181created the state of Israel by proposing a partitioning of Palestine between Jews and Arabs. Just like the Balfour Declaration earlier, Resolution 181 also categorically detailed the civil, political, economic, social, and cultural rights including religious rights of both Jews and Arabs for recognition and protection. Resolution 181 therefore created a Commission purposely to oversee the withdrawal of British troops as the mandate power in Palestine to give way for the establishment of the new Israeli state.

“The administration of Palestine shall, as the mandatory Power withdraws its armed forces, be progressively turned over to the Commission, which shall act in conformity with the recommendations of the General Assembly, under the guidance of the Security Council. The mandatory Power shall to the fullest possible extent coordinate its plans for withdrawal with the plans of the Commission to take over and administer areas which have been evacuated.”

It is important to note that the creation of the State of Israel on 14-15 May 1948 led Arab states to invade Palestine for what they consider to be an act of maintaining law and order to protect Palestinians at the massive influx of Jews into the country. In their declaration of invasion on May 15 they highlighted the fact that Palestine was part of the Ottoman Empire first, and then came under British rule after the First Imperialist War (erroneously called World War 1). Hence when the British left in accordance with UN Resolution 181 to allow for the creation of Israel, they did not leave behind any constitutional authority to maintain law and order. Arab states had rejected Resolution 181 because they considered it disadvantageous to Palestinians. They recalled that Britain had rather betrayed its promises to Arabs that they would ensure Palestinian independence after both wars.

It is recorded that in the wake of the creation of Israel in 1948, more than 750 thousand Palestinians were uprooted from their farms, villages, towns, and cities to give way to Jews to settle. This unfortunate scenario is known as the Nakba or Catastrophe in Palestinian history.  The question that must be raised therefore is, why did the British grant Palestine to Jews in their Balfour Declaration in 1917 yet ignore the Arabs in Palestine? Similarly, why did the UN establish the State of Israel in 1948 and ignored the concerns of Arab states and Palestinians about that decision?

It must be further noted that in 1916, UK and France with the consent of Imperial Russia signed what is known as the Sykes-Picot Agreement detailing their spheres of influence in the Middle East. The terms were negotiated by the French diplomat François Georges-Picot and British soldier Sir Mark Sykes, to draw a new map of the region in anticipation of the fall of the Ottoman Empire as the First Imperialist War was raging. At the heart of the Agreement, UK and France agreed to solicit Arab cooperation in the war so that upon kicking out the Ottomans they would support the creation and protection of an independent Arab state or a confederation of Arab states. Since the 1910s, the UK had been instigating Arabs to revolt against the Ottomans so that it would support an independent Arab nation. Yet after that war and the victory of France and UK secured, these European powers reneged on their agreement by refusing to grant independence and protection of any Arab state. Rather, the UK and France divided the Middle East among themselves including Palestine which came under British colonialism.

What can be deduced from the history of the Middle East region and the period until today is that Europe has remained locked in a colonial and imperialist mentality in which they are only concerned about their spheres of control and benefit. As a result, in the past as in the present, they have been taking terrible decisions without regard to human rights, peace, and the future of other peoples, the effects of which are still simmering across the world and in Palestine today. They continue to pursue a foreign policy and international relations which are situated squarely on imperialism. Their aged-old use of military power and unchecked violence continues to guide their perception of the world as it relates to their relationship with the non-White populations and lands. In other words, Western nations show no regard for human rights and justice so long as it does not serve their interests first and foremost.

Therefore, the current crisis in the Occupied Palestinian Territories should be understood from the perspective of European/Western disregard of the very values that they proclaim. Otherwise, how could one explain why Jews would be provided an independent state while ignoring Arabs in the same land called Palestine in both the Balfour Declaration and UN General Assembly Resolution 181? Above all, the Israel-Palestine Crisis highlights the failure of the international system and the political solutions therefrom. When the UN was created in 1945, three key instruments were created soon after which hugely concern Palestine and Israel back then and even more today. These were UN General Assembly Resolution 181 on 29th November 1947 to create the State of Israel in 1948, the adoption of the Universal Declaration of Human Rights on 10th December 1948 and the adoption of the Genocide Convention on 9th December 1948 to come into force in 1951.

In the Preamble of the Universal Declaration of Human Rights, a direct reference was made to the Holocaust.

“Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”

The Holocaust was a heinous crime which indeed “outraged the conscience of mankind.” Hence the creation of the Genocide Convention speaks to the UDHR which states that human rights must be protected by the rule of law. In other words, the protection of Jews was at the heart of both the UDHR and the Genocide Convention. But just as these instruments provided protection for Jews so also, they provide protection to all other peoples. The question therefore should be asked, how come peace and human rights continue to be damaged in Palestine for both Jews and Arabs since 1948 to date? Why are these instruments not upheld and enforced by all member states of the UN, more so Western Powers?

The answer to this rhetorical question is the failure of the international political system which, in the first place, wrongly conceived the creation of the state of Israel for Jews without regard to the creation of the state of Palestine for Arabs. Secondly, it highlights the failure of the European/Western Powers in upholding the very values they preach to apply to all peoples equally. Having wrongly approached the question of the Jews whom they had persecuted with impunity for centuries across Europe, Western powers continue to treat Palestinians with discrimination and violence as they are used to doing to all non-White populations.

Consequently, it is indeed ironic yet unsurprising that 79 years after the end of the 2nd Imperialist War in 1945, and 76 years after the creation of the State of Israel as well as the UDHR and the Genocide Convention, Israel is today at the centre of accusations of genocide before the International Court of Justice while its leaders are facing potential arrest warrants for war crimes and crimes against humanity before the ICC. This scenario can only be explained as a classic failure of the international political system thanks to the disregard and manipulation of that system by the Western Powers in total disregard of the rights and dignity of non-White populations.

Since 1948, Western Powers have undertaken the lead in addressing the Palestine-Israel issue. Almost every American president has invested huge ‘efforts’ in finding a peaceful solution. Similarly various European states and the EU have engaged in this matter. But until now none of their efforts such as the 1978 Camp David Accords, the 2020 Abraham Accords, or the 1993 Oslo Accords came to fruition. Why?

What has rather become apparent is the unchecked, uninformed, and unconditional support the US and its European counterparts provide to Israel even when the United Nations, Western NGOs and independent experts have certified that Israel is practicing apartheid and committing gross human rights violations against Palestinians. Not only do they arm Israel militarily under the cloak of that meaningless cliche, “Israel has a right to defend itself’, but they also attack and stifle dissent, criticism, and condemnation of Israel’s human rights violations in the name of antisemitism. It appears Western powers are either generally overburdened by the guilt of their mistreatment of Jews or they do not recognize the humanity of non-White populations or both.

For example, the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Francesca Albanese issued a report to the UN General Assembly in September 2022 in which she addressed the very issue of colonial and racist mindset after detailing the harrowing conditions in which the Israelis have kept the Palestinian people for decades.

“Exercising the right to self-determination in the form of a politically independent State in all of the occupied Palestinian territory would be a minimum requirement of justice for the Palestinian people; yet its realization is as distant as ever, largely because of settler-colonial endeavours pursued by Israel through its prolonged occupation of the Palestinian territory.

Colonialism, a phenomenon often disguised as a “civilization project” and historically imposed by “Western countries” on “third world” countries, was achieved through cultural subordination of the natives, economic exploitation of their land and resources and suffocation of their political claims. Colonialism is characterized as “settler” when also driven by the logic of elimination of the indigenous character of the colonized land. This manifests in the establishment and promotion of colonies, namely, settlements of foreign people implanted among the indigenous population with the aim of subjugating and dispossessing the natives and “permanently securing hold” over specific areas. The violation of the peoples’ right to self-determination is inherent to settler-colonialism.”

Exactly as she describes, one can notice the manifestation of this colonial practice by Israel in its demolition of Palestinian homes and forceful removal of the people and the construction of homes for Israeli settlers in their place. The usual response from the West has always been more and more rhetorical condemnation while continuing to provide the arms and funds with which the Israeli army forces use to remove Palestinians arbitrarily and forcefully. Rather what the West including Israel appears to be concerned about is the so-called unity and ability of Palestinians to create a viable state – once again highlighting that racist thinking that non-White people lack the capacity to do for self. As a Gambian, I am all too familiar with this narrative as the British colonialists had said the Gambia was an “improbable nation” unfit to be independent.

Otherwise, why is no Western government or leader joining the Special Rapporteur in her recommendation for the realization of the right to self-determination of the Palestinian people? Is it that Western nations do not believe in the ability of the colonized people to govern themselves? This colonial mentality is already evident in the messages coming from Tel Aviv, Washington, London, and Brussels which speak about “the day after”. Israeli leaders have been heard harping on the future of Palestine that they will determine who governs the place and how as if they own the people of Palestine who are unfit to look after themselves. Nothing can be more racist and colonial than that!

On the other hand, by their dominance in the UN Security Council, Western Powers – US, UK and France have multiple times vetoed resolutions seeking to solve the situation in Palestine. The US alone has vetoed more than 60% of the resolutions meant to restrain and hold Israel accountable and bring justice and peace to Palestinians. Furthermore, since the rumours about a potential ICC indictment of Israeli leaders erupted, US leaders – from the President to Secretaries to Congress people – have individually and collectively issued all sorts of threats and insults against the ICC and its officials in total contravention of Article 70 of the Rome Statute thus effectively obstructing the course of justice. Similarly, at the International Court of Justice, the entire Western Powers have stood against South Africa in defense of Israel in the genocide case.

But the West has been quite cooperative and supportive of the ICC in its earlier arrest warrants for Russian President Vladimir Putin and African leaders. While the Biden Administration was quick to point out that Israel is not a party to the ICC hence the Court has no jurisdiction over the country, the fact is both Russia and Ukraine are not members of the ICC either. Notwithstanding, the Biden Administration has not only vowed to share evidence with the ICC in prosecuting Putin, but the EU, on its part even went further to establish its own ‘International Centre for the Prosecution of the Crime of Aggression against Ukraine (ICPA)’ purposely to cooperate with ICC to that effect. The Guardian newspaper reported that, “The UK has offered qualified support for the creation of a special tribunal capable of holding the Russian civilian and military leadership, including Vladimir Putin, to account for war crimes in Ukraine.” If they could do this about Putin, why not about Netanyahu?

The height of their ridiculous support for Israel was epitomized by 12 Republican US Senators who had the temerity to write an arrogant letter on 24th April 2024 to ICC Prosecutor Karim Khan asking him to leave Israel alone. In a language characteristic of thugs, drug barons and drunkards, they stated,

“If you move forward with the measures indicated in the report, we will move to end all American support for the ICC, sanction your employees and associates, and bar you and your families from the United States. You have been warned.”

This story clearly highlights the unconditional, unchecked, and unreasonable Western support for Israel hence making them direct and active accomplices in the continued occupation, genocide and overall violence in the Occupied Palestinian Territories. What this further confirms is that the West is telling the world that they are above the rest of the non-White humankind so that they cannot and must not be held accountable to international laws and institutions. Even where a White person like Putin is indicted by the ICC, it is acceptable because the Russians are anti-West. A close scrutiny of the Western position therefore points to how they participate in creating an international legal and political system yet raise themselves above this system. They manipulate these political institutions and processes such as the UN and the Security Council to their benefit and at the detriment of the rest of the non-White world in particular.

In this regard, it appears that the time has come for the non-White populations to take responsibility and leadership by utilizing the established legal institutions and processes in order to achieve political gains such as ending Israeli Apartheid in Palestine. For example, the genocide case brought by South Africa and supported by several countries against Israel has served to bring greater leverage than all the combined Western peace talks and accords. The case gave an unprecedented opportunity for many non-White nations to speak openly about this issue quite bluntly, directly, and passionately than ever before. Consequently, the case has severely cornered Western Powers as it exposed their double standards and hypocrisy as well as debunked the false narratives and dishonesty of Israel and its backers when they hide behind antisemitism to stifle accountability for their crimes. Overall, the case has served to expand global awareness and understanding of the Palestinian issue thereby creating greater opportunities for solution.

For this reason, I see an even greater opportunity in the ICC decision. With the possible indictments of Benjamin Netanyahu and his defense minister Yoav Gallant, it shows in the first place that the long-running political solutions have been ineffective and irrelevant. Certainly, as a court, the ICC is only interested in the actions of both Israel and Hamas that have taken place from 7th October 2023 to date, and not to the wider political context that gave birth to those actions. But by looking at those violent actions in themselves, the case will naturally also expose the wider political and historical context of this matter. This will hopefully bring greater public enlightenment and a more effective political will and commitment leading to the end of this mayhem in Palestine.

For example, since South Africa took Israel before the International Court of Justice in December 2023 for committing genocide in Gaza it has generated huge international attention and support. Many countries and organizations have come out to formally apply to join South Africa while many more have openly spoken out against the occupation in quite unprecedented ways. With the announcement by the ICC to apply for arrest warrants for Netanyahu and others, three EU countries – Spain, Ireland and Norway have stepped forward that they would recognize the Palestinian state. These political actions are both unprecedented and certainly triggered by these legal processes, which also gives opportunity to Western nations to reposition themselves on the right side of history. This goes to confirm that the solution to this longstanding and pestering issue will come through the legal process. If favorable outcomes emerged from the ICJ and the ICC they would hugely embolden and empower more countries and organizations worldwide to vigorously support and achieve the realization of an independent Palestine.

In conclusion the involvement of the ICC in the Palestine issue highlights the failure of the international political system which is largely dominated and controlled by the West. The ICC action therefore exposes not only the militaristic and violent character of Western diplomacy and international relations but also demonstrates their inherent colonial and imperialistic nature. The history and the ongoing situation in Palestine are a direct manifestation of their racist character, which is at the heart of most, if not all conflicts littered around the world. Thanks to Western colonialism and imperialism, in the past and present, almost all regions and nations of the world have been placed in untenable situations, the effects of which are manifesting in fault lines causing protracted conflicts and undermining peace and human rights in the world.

It is for this reason that a new world order is urgently required. The current era ushered in by the imperialist war of 1945 has reached its expiry date. For example, the United Nations conceived under the shadow of the Allied Powers should be decolonized and democratized. All five permanent members of the Security Council – US, UK, Russia, France, and China – are still the major belligerents in the world posing clear and present danger to the objects and purpose of the UN. The rest of the world cannot and must not be subject to the whims and caprices of a few countries who have shown glaringly their incapability to uphold the principles and standards of human rights and peace for all.

Yes, the era of 1945 saw the end of colonialism in most parts of the world thereby putting a greater number of peoples within the field of democracy. It launched a new era of human rights system with the creation of formidable instruments such as the UDHR and the Genocide Convention and crucial institutions such as the ICJ and the ICC. It is an era which has expanded the limits of freedom and prosperity to vast areas of the world. But it has now reached the extent of its efficacy and needs replacement because of the hegemony of one region, the West, which is threatening global peace and security.

The time has come to call a spade a spade!

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