The ICC can no longer ignore the genocide in Gaza

Failure to launch an investigation into genocide in Gaza and issue arrest warrants can have a devastating impact on the International Criminal Court.

A woman mourns over her dead son in the Al Aqsa hospital in Deir al Balah following an Israeli bombardment in the Maghazi refugee camp, central Gaza Strip, Tuesday, April 16, 2024. Several killed in a strike in Maghazi camp in Central Gaza on Tuesday. (AP Photo/Abdel Kareem Hana)
A Palestinian woman mourns over her son killed by Israeli bombardment of the Maghazi refugee camp in the central Gaza Strip on April 16, 2024 [Abdel Kareem Hana/AP]

Over the past few months, the International Criminal Court (ICC) under the leadership of Prosecutor Karim Khan has come under heavy criticism for not taking any concrete steps to prosecute the crime of genocide in Gaza.

In November, six of its state parties led by South Africa referred the situation in Palestine to the court and urged it to act. The same month, three Palestinian rights groups submitted a communication to the ICC, asking it to investigate the crimes of apartheid and genocide in Palestine.

In December, Khan visited Israel and made a short trip to Ramallah, where he briefly met with victims of Israeli crimes. He then issued a general statement about investigating “allegations of crimes” that did not in any way refer to the mounting evidence of genocide being perpetrated in Gaza.

In January, the International Court of Justice (ICJ) declared that Israel is “plausibly” committing genocide in Gaza. That also did not spur the ICC into action. The court has not even attempted to justify why it has failed to investigate genocide or issue any arrest warrants.

Last month, our organisation, Law for Palestine, made the first in a series of submissions to the ICC, characterising the crime of genocide committed by Israeli leaders against the Palestinian people. The 200-page document, drafted by 30 lawyers and legal researchers from across the world and reviewed by more than 15 experts, makes a compelling case for the genocidal intent as well as for the prosecutorial policy that the court has followed in other cases.

If the ICC fails to act once again, it risks undermining its own authority as an institution of international justice and the international legal regime as a whole.

Intent is hard to prove, but not in Gaza

The ICC is obliged to take immediate action on Gaza given the wealth of evidence supporting the accusations of genocide against Israel. Our submission highlights this reality.

In our filing, we focused specifically on the intent to commit genocide since it is considered the most difficult aspect to prove in a case of genocide.

We point to the numerous statements, including by Israeli Prime Minister Benjamin Netanyahu, President Issac Herzog, Defence Minister Yoav Gallant, and members of the Knesset, as well as members of the public, where the intention to commit genocide is laid bare. We also refer to the database we have put together of more than 500 instances of Israeli incitement to genocide as additional proof.

While the statements form a substantial part of the intent component of the crime of genocide, the submission goes beyond and highlights the various actions and official policies that additionally prove intent. These include a pattern of targeting of medical facilities, deliberate destruction of agricultural land and water systems, and the obstruction of aid in order to cause starvation.

We have also highlighted parallels between the well-documented Israeli policies of ethnic cleansing and similar atrocities in the former Yugoslavia and Rwanda, where international criminal tribunals have ruled on the crime of genocide.

We argue that Israeli attempts to “de-civilianise” Palestinian civilians in Gaza through the systematically and inaccurately employed human shields claim is a genocidal technique. We also outline Israel’s destruction of Palestinian culture, heritage, and education systems, ecocidal policies and practices, and domicidal policies and practices in Gaza, which also reflect genocidal intent.

Finally, we contend that Israel’s practice of apartheid creates an environment conducive to committing the crime of genocide, just like in the cases of Nazi Germany and Rwanda, and that the Israeli laws enacted to protect its leaders from prosecution also point to the intent to commit genocide.

When considered collectively, this evidence constitutes “reasonable grounds” to believe that Israeli leaders have a general genocidal intent. This should be more than enough for the ICC to proceed with necessary legal action.

ICC cannot ignore its own genocide rulings

Beyond the availability of extensive and comprehensive evidence, the ICC should be compelled to act also because of previous precedents it has set.

Since its inception, the ICC has identified the existence of a reasonable basis for investigating cases of genocide, including ones with far lesser devastation to civilian lives and infrastructure than currently observed in Gaza.

For instance, in the case of the genocide in Darfur, in a July 2010 decision, the court correctly identified that the threshold to issue an arrest warrant against Sudan’s then-President Omar al-Bashir for the crime of genocide was that “there are reasonable grounds to believe” that the intent exists.

This decision was a revision of the court’s initial decision of March 2009 where the threshold of inferring the intent was “the only reasonable conclusion to be drawn”. In its revised decision, the court stated that this threshold is only applicable later in the trial stage, not at the stage of issuing arrest warrants.

The spirit to investigate genocide was apparent in the ICC’s approach to the situation in Ukraine as well, despite facing greater challenges in establishing both the intent and the acts of genocide by Russia. The ICC, under Prosecutor Karim Khan, dispatched a 42-member investigative team to Ukraine within three months of the full-scale Russian invasion. They collected enough evidence to allow the court to issue four arrest warrants so far.

It is also important to note the evaluation the current ICC prosecutor made in his previous role as special adviser and head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) in 2021. Based on UNITAD’s independent criminal investigations, he confirmed that there is “clear and convincing evidence that genocide was committed by ISIL against the Yazidi as a religious group”. He drew his conclusion based on the ideology as well as the practices of ISIL.

Needless to say, the evidence on Israeli genocidal intent and its connection with ideology are extremely abundant and have been documented extensively, for decades. At the outset, the Zionist movement recognised itself as a settler colonial entity and viewed the elimination of the Indigenous population of Palestine as a necessity. Over the last few months, this link between genocidal intent and ideology has been repeated by several Israeli leaders in reference to the violence unleashed on Gaza, most prominently by Netanyahu in his call to “remember what Amalek has done to you”, referring to the biblical commandment to smite and destroy the Amalekites.

Furthermore, it is important to note that one of Khan’s predecessors, former ICC Prosecutor Luis Moreno Ocampo, clearly stated that even the “siege of Gaza itself… is a form of genocide”.

Additionally, the serious risk of genocide or the plausibility of its commission by Israel, if not full perpetration, has been recognised by top official bodies and experts within the UN system. Besides the ICJ provisional measures and additional provisional measures, which clearly stated that there is a plausible case for genocide, a number of statements and warnings have been voiced out by UN special rapporteurs and working groups, the UN Committee on the Elimination of Racial Discrimination (CERD), the Committee on the Exercise of the Inalienable Rights of the Palestinian People (CEIRPP), and UN staff members.

The ICC is losing legitimacy

Proceeding from all this evidence and recognition, the case for the ICC announcing an investigation into genocide and issuing arrest warrants against Israeli leaders is indisputable, especially given its own standards of “reasonable grounds” as seen in the Bashir case.

The case for genocide of the Palestinians in Gaza is as compelling as any previously judicially successful case – if not more. Failure to announce an investigation into the crime of genocide will cause severe and long-lasting damage to the already seriously challenged image and legitimacy of the court.

Some would even argue that the ICC is heading for jurisprudential suicide by undermining the precedents set by the Darfur and Ukraine situations.

The question of Palestine is at the heart of the post-World War II international legal order and cannot be ignored. Amid the continuous erosion of the ICC’s legitimacy, the court and its prosecutor must urgently investigate the genocide unfolding in Palestine and issue arrest warrants against the Israeli war cabinet, if they are to restore the faith of the global majority in this institution of global justice.

The views expressed in this article are the authors’ own and do not necessarily reflect Al Jazeera’s editorial stance.