Following ICJ and ICC Actions, Sanctions and Arms Embargo Are Crucial Next Steps

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Human Rights and Global Wrongs

Seven months into its genocidal campaign, Israel’s assault on Rafah led the International Court of Justice (ICJ) to issue a preliminary order on May 24. The court called on Israel to “Immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.” It also ordered Israel to keep the Rafah crossing open and permit United Nations investigative commissions to enter Gaza and investigate allegations of genocide.

In addition, mounting Israeli atrocities propelled Karim Khan, chief prosecutor of the International Criminal Court (ICC), to seek arrest warrants on May 20 against top Israeli officials.

The ICC “made the first truly historic move since its establishment in 2002” by seeking arrest warrants against Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and three prominent leaders of Hamas, Professor Richard Falk wrote.

“The ICJ and ICC confirmed this week that international action is needed because Israel will not hold itself accountable and will not voluntarily end its crimes,” said Raed Jarrar, advocacy director for Democracy for the Arab World Now (DAWN).

The Rafah Tent Massacre

But just minutes after the ICJ ruled that Israel must halt its military offensive in Rafah, Israel intensified its bombing of the city. Two days later, on May 26, Israeli bombs targeted a tent encampment in a “humanitarian safe zone” in the Tal al-Sultan neighborhood of Rafah, where Israel had instructed displaced Palestinians to shelter. The airstrikes killed nearly 45 Palestinians, mostly women and children.

The bombing caused “a large inferno and massive casualties, including children who were burned alive in a sea of flames,” Michel Moushabeck wrote at Truthout. Video recordings circulating on social media show “a headless child, charred bodies of children, women and children frantically running in all directions trying to escape the fires,” he added. “They bring Israeli atrocities in Gaza to a new level of unspeakable cruelty and horror.”

On May 28, two days after the Rafah tent massacre, Israeli tanks began rolling into central Rafah, in an escalation of Israel’s offensive.

Since October 7, 2023, Israel has conducted a full-fledged genocide in Gaza, killing more than 36,000 Palestinians. The death toll will invariably rise as untold numbers of people are trapped under the rubble. Over 80 percent of the people in Gaza have been displaced from their homes and more than half of Gaza’s population of 2.3 million are believed to be sheltering in Rafah. In spite of the ICJ’s previous orders of provisional measures (temporary injunctions) on January 26 and March 28 , Israel continues to commit war crimes, genocide and crimes against humanity in the occupied Palestinian territory.

ICC Prosecutor’s Request for Arrest Warrants

The Rafah tent massacre also came days after Prosecutor Khan asked the ICC to issue arrest warrants for Netanyahu and Gallant for the war crimes of starvation of civilians as a method of warfare, willful killing and murder, willfully causing great suffering or serious bodily injury, and intentionally directing attacks against a civilian population. Khan also seeks warrants against them for the crimes against humanity of extermination and/or murder, persecution, and other inhumane acts.

Khan requested arrest warrants for Hamas leaders Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri, and Ismail Haniyeh for the war crimes of taking hostages, cruel treatment and outrages upon personal dignity. He also asked for arrest warrants against the three men for the crimes against humanity of extermination, murder, rape and other sexual violence, torture, and other inhumane acts.

Netanyahu described Khan’s request for arrest warrants for him and Gallant as “a moral outrage of historic proportions” and a “travesty of justice” that sets “a dangerous precedent” and flies in the face of Israel’s right to self-defense.

U.S. President Joe Biden likewise blasted Khan’s action against the two Israeli leaders, calling it “outrageous.” This marked “the first time in U.S. history that a sitting president has openly sided with suspected war criminals against the ICC,” Stephen Zunes wrote at Truthout.

Biden also stated, “Whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas.” Ironically, Hamas is outraged at the equivalency in calling for charges against both Israeli and Hamas leaders, noting that it “equates the victim with the executioner.”

Indeed, Falk noted, “There is no proper equivalence between the one-off attack of October 7, despite its atrocities, and the seven-month Israeli campaign of death and devastation in Gaza.”

Furthermore, contrary to Netanyahu’s claim, Israel as an occupying power does not have the right to self-defense in the territory it occupies. In its 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ established the non-applicability of “self-defence” under Article 51 [of the UN Charter] in the situation between Israel and the occupied Palestinian territory.

Meanwhile, Hamas said it has the right to resist the Israeli occupation, including through “armed resistance.” In 1983, the UN General Assembly reaffirmed “the legitimacy of the struggle of peoples for their independence, territorial integrity, national unity and liberation from colonial domination, apartheid and foreign occupation by all available means, including armed struggle.”

Biden’s Shifting “Red Line” Enables Continuing Genocide

In early May, Biden said in a CNN interview that if Israel mounts a full-scale invasion of the Rafah, “we’re not going to supply the weapons and artillery shells.”

Two days after the vicious Israeli attack in Tal al-Sultan, however, the White House declared that Israel had not crossed a “red line” to warrant a change in U.S. policy, although administration officials called the attack “heartbreaking,” “tragic” and “horrific.”

White House Spokesperson John Kirby said, “We still don’t believe that a major ground operation in Rafah is warranted.” But The Washington Post confirmed on May 31 that “Israeli forces have begun to push into Rafah’s most populated areas in recent days, razing scores of buildings along the way.”

“Israeli commandoes backed by tanks and artillery were operating in central Rafah, the Israeli military said in a statement, without specifying precise locations,” The New York Times reported on May 31. “On [May 29], the Israeli military said it had established ‘operational control’ over the border zone with Egypt, an eight-mile-long strip known as the Philadelphi Corridor, on the outskirts of Rafah.”

Moreover, Israel used a U.S.-made bomb in its massacre in Tal al-Sultan. The Washington Post reported that, “Four weapons experts said the Israeli military used a U.S.-made precision bomb in a strike that killed at least 45 people in southern Gaza on Sunday, after reviewing visual evidence.”

The massacre came a few weeks after a State Department report concluded it was “reasonable to assess” Israel had used U.S. weapons in manners “inconsistent” with international law. Days after that report was issued, the Biden administration announced it would send Israel an additional $1 billion in weapons and ammunition.

Khan Should Have Sought Warrants for the Crime of Genocide

The ICC’s Rome Statute provides for prosecution for war crimes and crimes against humanity. But it also punishes the crime of genocide. In spite of the ICJ’s January 26 ruling finding that Israel was plausibly engaging in genocide, Khan did not seek arrest warrants for genocide for Netanyahu and Gallant.

Raji Sourani, general director of Palestinian Centre for Human Rights said in a statement: “The Prosecutor’s application for arrest warrants for the Israeli Prime Minister and Minister of Defense is an important step towards accountability for the commission of serious international crimes under the Rome Statute, despite coming after 226 days of live broadcasted genocide, where Israel killed over 35,000 Palestinians, wounded more than 75,000 others, displaced 90 percent of the population, starved the civilian population and destroyed the whole Strip.” Sourani urged the ICC prosecutor to secure “arrest warrants for the crime of genocide given the staggering evidence of genocidal acts and intent made by top Israeli officials.”

Richard Falk concurred. Calling the crime of genocide “the elephant in the room,” Falk wrote, “Over time I suspect that the failure to address ‘genocide’ will be regarded as the most shocking weakness in the prosecutor’s formal statement.”

Nevertheless, Falk emphasized the significance of the two international judicial developments to the movement to protect the rights of the Palestinian people.

“The importance of the ICJ, and potentially the ICC, is to strengthen the growing tide of support for Palestinian rights around the world, alongside an emerging consensus of the sort that contributed to the American defeat in Vietnam and doomed the South African apartheid regime,” Falk wrote at Middle East Eye. “If the Palestinian people finally realise their basic rights, it will be thanks to the resistance of those victimised, as reinforced by the transnational activism of people everywhere.”

There are calls for the international community to impose sanctions and an arms embargo on Israel. “The Court’s clear and unequivocal ruling ordering a halt to Israel’s military offensive in Rafah leaves no ambiguity about what should follow: an arms embargo on Israel,” said Sarah Leah Whitson, DAWN’s executive director. “Continued U.S. arms transfers to Israel would constitute deliberate defiance of the Court’s orders and make our government complicit in genocide.” DAWN’s Jarrar added, “The international community has an obligation to use pressure and sanctions to force Israel to end its atrocities, just as it used pressure and sanctions to force South Africa to end apartheid.”