The ICC has applied for an arrest warrant for Benjamin Netanyahu. But Israel’s assault on Gaza has been made possible by US support.
Past the 20-foot-high aluminum doors of the Justice Department’s Robert F. Kennedy Building, and down a long limestone hallway lined with art deco accents, Room B-206 has long served as the epicenter of the Biden administration’s prosecutorial war against former president Donald Trump. Behind the heavy wooden door is the office of special counsel Jack Smith, a highly secure redoubt where attorneys spent years building criminal cases against Trump for allegedly attempting to overturn the outcome of the 2020 election, as well as for his alleged improper handling of classified documents after leaving the White House.
But now, instead of heading to trial, the prosecutors are scrambling to empty file cabinets and stuff their contents into cardboard storage boxes. As a result of Trump’s election win, the prosecution is officially halted by the Justice Department’s policy prohibiting the filing of criminal cases against a sitting president. But while President-elect Trump will likely never face the consequences of his alleged criminal actions, President Biden may one day face trial for his, albeit in a far different courtroom in The Hague.
Three thousand eight hundred miles to the east from Washington sits the International Criminal Court (ICC), a complex of six modern towers in the Netherlands not far from Peace Palace and Europol in The Hague. In the largest building, Court Tower, are three courtrooms that carry out the institution’s mandate: to prosecute perpetrators of genocide, crimes against humanity, and war crimes, thereby providing justice to victims.
According to Article 1 of the Genocide Convention, the Contracting Parties, including the United States and Israel, must prevent and punish acts of genocide. Under Article III, those punishable acts include “Complicity in genocide,” such as by knowingly providing the deadly weapons used to carry it out. In 2007, the International Court of Justice (ICJ), in a case involving Bosnia and Serbia, established that the obligation to refrain from providing weapons or other assistance begins the moment a state becomes aware of the existence of a serious risk that genocide may be committed.
For the Biden administration, that moment came in January, when the ICJ found that there was a “plausible” risk of genocide being committed in Gaza against the Palestinian people by Israel. Shortly after, in February, the Dutch Appeals Court halted the transfer of F-35 munition parts to Israel on account of the serious risk of International Humanitarian Law violations. Further notice came in May with the applications for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and others by the chief prosecutor of the ICC, Kharim Khan. Among the charges against Netanyahu related to Gaza were crimes against humanity, including extermination, murder, starvation of civilians as a method of warfare, intentional attacks against a civilian population, and “other inhumane acts.” It was the first potential ICC arrest warrant issued for the leader of a Western-style democracy. Nevertheless, European countries including France and Germany issued statements affirming their support for the legitimacy of the ICC.
Despite the clear indication that American weapons were being used to carry out an alleged Israeli genocide, the bombs continued to flow and the wholesale massacres never stopped. According to a report last week by the UN Human Rights Office, close to 70 percent of the fatalities in Gaza have been children and women, “indicating a systematic violation of the fundamental principles of international humanitarian law,” said the report. Nizam Mamode, a retired surgeon with Britain’s National Health Service who recently returned from working at a hospital in Gaza, testified last week to members of Parliament that he treated children “day after day after day” who had been deliberately targeted by Israeli drones following bomb attacks.
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In July, an analysis published by the medical journal The Lancet estimated that the actual number of Palestinian deaths in Gaza, including those decomposing beneath the rubble of bombed-out hospitals, schools, and densely packed refugee camps, is likely more than 186,000. And if the deaths continue at the same rate, said Devi Sridhar, chair of global public health at the University of Edinburgh, the estimated deaths by the end of the year would total 335,500.
In spite of those grim statistics, the Biden administration last month decided to play politics with the lives of the desperate and starving survivors in Gaza, most of whom had been forced to flee from multiple Israeli evacuation orders. To help the Harris campaign with pro-Palestinian voters, Biden pretended to turn tough and issued a highly publicized letter giving Netanyahu a 30-day deadline to increase the flow of food and other aid
