The International Criminal Court (ICC) Begs the Question, What Is a War Crime?
Common sense argues that all wars are a crime, their mayhem and destruction falling disproportionally on civilians. Had war been an international crime at the time, Hitler might not have led the world into chaos. The Korean ‘conflict’ might have been avoided, along with such costly events in Vietnam, Iraq, Afghanistan and Syria.
If war itself is not a crime, how can there be a ‘war crime?’
Like any sensible game, from Monopoly to the Destruction of Sovereign Nations, there are rules and protocols. These originated in the 1864 Geneva Convention in Switzerland, a nation that never goes to war. That convention established the Red Cross emblem signifying neutral status and protection of medical services and volunteers. I was myself an Army medic in 1956, drafted in the comfortable lull between the Korean and Vietnam wars.
Other emblems were later recognized, and the Geneva Conventions of 1949, confirmed them all, their Additional Protocols forming the core of international humanitarian law, which regulates the conduct of armed conflict and seeks to limit its effects. Rules, for the madness of armed conflict.
Good luck with that.
Laws that decide who is allowed to cut whoever’s throat, and under what circumstances, is grotesque in and of itself and a confirmation of man’s most villainous crimes against his own species.
Falling just short of criminalizing war, we invented the International Criminal Court
On 17 July 1998, the international community reached an historic milestone when 120 States adopted the Rome Statute, the legal basis for establishing the permanent International Criminal Court. The Rome Statute entered into force on 1 July, 2002, after ratification by 60 countries.
Almost more interesting is who’s in and who’s out.
The Rome Statute of the International Criminal Court was adopted by a vote of 120 to seven, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the U.S., and Yemen. What wonderful company we, the land of the free and the brave, chose for allies.
That’s why the U.S. and Israel have their hair on fire about the ICC’s recent charge of criminality against Israel's Prime Minister, Benjamin Netanyahu, and Defense Minister, Yoav Gallant
The ICC's chief prosecutor, Karim Khan, announced on Monday that he had applied for arrest warrants against both men, as well as three Hamas officials - Yahya Sinwar, its leader in Gaza, Mohammed Deif, the commander of its Qassam Brigades military wing, and Ismail Haniyeh, the head of its political bureau.
Khan’s decision was not made in isolation.
He convened a panel of experts to review the evidence and provide legal analysis to support the arrest warrants
Those experts included Sir Adrian Fulford, a retired lord justice of appeal in the United Kingdom, who served as a judge in England and Wales for nearly three decades. Amal Clooney, a British-Lebanese barrister and human rights lawyer who represents clients before the ICC, the International Court of Justice (ICJ) and the European Court of Human Rights. Judge Theodor Meron, an American-Israeli lawyer and judge who served on United Nations tribunals relating to war crimes in the former Yugoslavia and Rwanda. Additionally, he is a special adviser on international humanitarian law to the ICC prosecutor and is affiliated with the Council on Foreign Relations and the Institute of International Law.
Also included were Danny Friedman, a king’s counsel (KC) barrister at London-based Matrix Chambers, and currently practices as a temporary high court judge in Northern Ireland. He legally advises nongovernmental organizations and state organizations seeking to comply with human rights and humanitarian law obligations within and outside the UK. He has particular expertise in terrorism and counterterrorism law. Baroness Helena Kennedy, a Scottish barrister based at Doughty Street Chambers, London, and director of the International Bar Association’s Institute of Human Rights. Helena Kennedy is president of Justice, a law reform think tank. Elizabeth Wilmshurst, a distinguished fellow of international law at Chatham House, London, a visiting professor at University College London, deputy legal adviser to the Foreign & Commonwealth Office (FCO) in 2003 but resigned when her legal opinion that the invasion of Iraq was illegal without a second United Nations Security Council resolution was reversed on March 20 that year.
Sounds even-handed to me
Hamas attacked Israel on October 7, 2023, killing some 1139 Israelis, about a third as many as the deaths from the World Trade Center 9-11 attack. What may not have been even-handed, was the Israeli response—an invasion of Palestine that has thus far killed some 37,000 civilians, roughly 25,000 of whom were women and children, according to Lloyd Austin, the American Secretary of Defense. Netanyahu claims Hamas was integrated within the Palestinian civilian society, which is probably true, but the devastation he ordered far outweighed a measured response.
The additional targeting of schools and hospitals, including water, sewer, and electric infrastructure, as well as entire apartment blocks, takes these raids out of the category of military retaliation. World opinion increasingly recognizes Israel’s actions as a genocide, ‘the systematic killing of people on the basis of ethnicity, religion, political opinion, social status, etc.’
The ICC brought charges of criminality against Vladimir Putin for his invasion of Ukraine, and America raised not a whisper, but Israel was apparently a bridge too far
Joe Biden pledged unconditional and immediate support to Israel in both money and weaponry, something I thought was ill timed and morally suspect. Accordingly, the U.S. was called out internationally for our bombs, artillery and financial support being used against a sovereign civilian population. If you think ‘sovereign’ is too strong a word, recognize that Palestine existed as part of the British mandate in that part of the world, long before Britain essentially created Israel in the last two weeks of an expiring mandate.
“Good luck,” said the Brits upon leaving, “hope it all works out.”
Yes, there is a biblical connection to world Jews and Jerusalem, but there is a Muslim heritage there as well. When that part of the world belonged to Turkey, taken from them after the First World War, the Turks had no difficulty accepting and encouraging the dual claims on Jerusalem. Jews and Muslims lived side by side in harmony.
But the name of the territory was Palestine
Palestine, which has witnessed many conflicts throughout history, came under Ottoman rule in the 16th century and the Palestinian territory was organized into three states, Jerusalem, Gaza and Nablus, all linked to the Damascus Province. The Ottomans ruled for 401 years. It was, and still is, a region of great importance for Muslims, Christians, and Jews. When Western forces invaded the region in the 19th century, a never-ending chaos began in Palestinian and other regions of the Middle East.
Ah yes, an early reference that holds true until today, that Western influence can always be depended upon to do the right thing elsewhere in the world, after trying everything else. That’s a variation on Churchill’s comment on America, but at least Americans have an excuse. We are a young country, too politically wet-behind-the-ears to manage such a global responsibility. The Brits are less exempt, having been at the game for centuries.
What Netanyahu fails to understand is that the Palestinians are simply not going to accept the handing over of a homeland they occupied for half a millennium
Every bomb dropped, every artillery shell fired, and every illegal Israeli town built within their territory is a recruiting bonanza for Hamas. War has not been the same since the end of WWII. Armies no longer meet enemy forces on the field of battle. The United States, the most powerful military force in the world, has now lost three wars to insurgencies made up of the least powerful. No one knows nowadays who the enemy is, much less where they can be met. Confrontations occur at both the places and timing of the insurgents.
My guess is that, when Netanyahu’s ‘war’ wearies its way to a stalemate, the Hamas choice of attack will be Israel’s illegal towns within the Palestinian territory. Not only were these incursions illegal--in violation of Article 49 of the Fourth Geneva Convention, or in breach of international declarations--but foolishly isolated. Night-raiders, car-bombers, and saboteurs in all flavors may be expected, striking in darkness and fading away like morning mist.
Most catastrophes are political in nature and the Israeli-Hamas war is no exception. Benjamin Netanyahu’s self-serving (to allay a personal criminal trial) and overwhelmingly outsized response (to serve his ego) to a brutal Hamas attack, brings into question whether Israel can, or will, continue to exist in any recognizable form.
But stranger things have happened
George Bush and Dick Cheney are comfortable in their retirement, despite a willingness to allow torture at abu Ghraib, Guantanamo, and elsewhere (off American soil), while engaging in two wars. Afghanistan, the longest war ever fought by our nation, five times the length of WWII. Then the ruination of Iraq, an attack based on America’s lies to its citizenry that they knew to be untrue.
Yet, its fair to ask if the United States exists today in a recognizable form compared to its past reputation.