By Vijay Prashad

Tricontinental: Institute for Social Research

Israel’s massacre in the tent camp in Rafah is just the latest. For decades now, Tel Aviv  – like Washington  – has defied any attempt to apply international humanitarian law to its actions.

 

The skin is the largest organ of the human body. It covers our entire surface, at some points only as thin as a piece of paper and at other points about half as thick as a credit card.

The skin, which protects us from all manner of germs and other harmful elements, is fragile and unable to defend humans from the dangerous weapons we have made over time. The ancient blunt axe will break the skin with a heavy blow, while a 2,000-pound MK-84 “dumb bomb” made by General Dynamics will not only obliterate the skin, but the entire human body.

Despite a May 24 order from the International Court of Justice (ICJ), the Israeli military continues to bomb the southern part of Gaza, particularly the city of Rafah. In blatant disregard of the ICJ’s order, on May 27 Israel struck a tent city in Rafah and murdered 45 civilians.

U.S. President Joe Biden said on March 9 that an Israeli attack on Rafah would be his “red line,” but – even after the tent massacre – the Biden administration has insisted that no such line has been violated.

At a press conference on May 28, communications adviser to the U.S. National Security Agency, John Kirby, was asked how the U.S. would respond if a strike by the U.S. armed forces killed 45 civilians and injured 200 others.

Kirby responded, “We have conducted airstrikes in places like Iraq and Afghanistan, where tragically we caused civilian casualties. We did the same thing.”

To defend Israel’s latest massacre, Washington has chosen to make a startling admission. Given that the ICJ has ruled that it is “plausible” that Israel is conducting a genocide in Gaza, could it be said that the U.S. is guilty of the same in Iraq and Afghanistan?

In 2006, the International Criminal Court (ICC) began to assess the possibility of war crimes in Iraq and Afghanistan, and then, in 2014 and 2017, respectively, opened formal investigations into crimes committed in both countries.

Neither Israel nor the United States are signatories to the 2002 Rome Statute, which established the ICC. Rather than sign the statute, the U.S. Congress passed the American Service-Members’ Protection Act — known informally as the “Hague Invasion Act” — which legally authorises the U.S. government to “use all means necessary” to protect its troops from ICC prosecutors.

Since Article 98 of the Rome Statute does not require states to turn over wanted personnel to a third party if they have signed an immunity agreement with that party, the U.S. government has encouraged states to sign “Article 98 agreements” to give its troops immunity from prosecution.

Still, this did not deter ICC Prosecutor Fatou Bensouda (who held the post from 2012–2021) from studying evidence and issuing a preliminary report in 2016 on war crimes in Afghanistan.

Afghanistan joined the ICC in 2003, giving the ICC and Bensouda jurisdiction to conduct their investigation. Even though it signed an Article 98 agreement with Afghanistan in 2002, the U.S. government fervently attacked the ICC’s investigation and warned Bensouda and her family that they would face personal repercussions if she continued with the investigation.

In April 2019, the U.S. revoked Bensouda’s entry visa. Days later, a panel of ICC judges ruled against Bensouda’s request to proceed with a war crimes investigation in Afghanistan, stating that such an investigation would “not serve the interests of justice.”

Staff at the ICC were dismayed by the court’s decision and eager to challenge it but could not get support from the justices. In June 2019, Bensouda filed a request to appeal the ICC’s decision not to pursue the investigation into war crimes in Afghanistan.

Bensouda’s appeal was joined by various groups from Afghanistan, including the Afghan Victims’ Families Association and the Afghanistan Forensic Science Organisation. In September 2019, the Pre-Trial Chamber of the ICC ruled that the appeal could go forward.

The U.S. government was enraged. On June 11, 2020, President Donald Trump signed Executive Order 13928, which authorised his government to freeze ICC officials’ assets and ban them and their families from entering the United States.

In September 2020, the U.S. imposed sanctions on Bensouda, a national of Gambia, and senior ICC diplomat Phakiso Mochochoko, a national of Lesotho. The American Bar Association condemned these sanctions, but they were not revoked.

The U.S. government eventually repealed the sanctions in April 2021, after Bensouda left her post and was replaced by the British lawyer Karim Khan in February 2021.

In September 2021, ICC Prosecutor Khan said that while his office would continue to investigate war crimes by the Taliban and the Islamic State in Afghanistan, it would “deprioritise other aspects of this investigation.”

This awkward phrasing simply meant that the ICC would no longer investigate war crimes committed by the United States and its allies from the North Atlantic Treaty Organisation. The ICC had been sufficiently brought to heel.

Prosecutor Khan again demonstrated his partial application of justice and fealty to the Global North ruling elites when he rushed into the conflict in Ukraine and began an investigation into war crimes by Russia just four days after its invasion in February 2022.

Within a year, Khan would apply for warrants for the arrest of Russian President Vladimir Putin and his Commissioner for Children’s Rights Maria Lvova-Belova, which were issued in March 2023. Specifically, they were charged with colluding to abduct children from Ukrainian orphanages and children’s care homes and take them to Russia, where – it was alleged – these children were “given for adoption.”

Ukraine, Khan said, “is a crime scene.”

Khan would use no such words when it came to Israel’s murderous assault on Palestinians in Gaza. Even after more than 15,000 Palestinian children had been killed (rather than “adopted” from a war zone), Khan failed to pursue warrants for the arrest of Israeli Prime Minister Benjamin Netanyahu and his military subordinates.

When Khan visited Israel in November–December 2023, he warned about “excesses” but suggested that since “Israel has trained lawyers who advise commanders,” they could prevent any horrendous violations of international humanitarian law.

By May 2024, the sheer scale of Israel’s brutality in Gaza finally forced the ICC to take up the issue. The orders from the ICJ, the outrage expressed by numerous governments of the Global South, and the cascading protests in country after country together motivated the ICC to act.

On May 20, Khan held a press conference where he said that he filed applications for the arrest of Hamas leaders Yahya Sinwar, Mohammed Diab Ibrahim al-Masri and Ismail Haniyeh and Israeli Prime Minister Benjamin Netanyahu and his head of military, Yoav Gallant.

Israel’s Attorney General Gali Baharav-Miara said that the ICC accusations against Netanyahu and Gallant are “baseless” and that Israel will not comply with any ICC warrant.

For decades now, Israel – like the United States – has rejected any attempt to apply international humanitarian law to its actions.

The “rules-based international order” has always provided immunity for the United States and its close allies, an immunity whose hypocrisy has increasingly been revealed. It is this double-standard that has provoked the collapse of the U.S.-driven world order.

Buried within Khan’s press statement is an interesting fragment:

“I insist that all attempts to impede, intimidate, or improperly influence the officials of this Court must cease immediately.”

Eight days later, on May 28, The Guardian – in collaboration with other periodicals – published an investigation that revealed Israel’s use of “intelligence agencies to surveil, hack, pressure, smear, and allegedly threaten senior ICC staff in an effort to derail the court’s inquiries.”

Yossi Cohen, the former head of Israel’s spy agency, Mossad, personally harassed and threatened Bensouda (Khan’s predecessor), warning her, “You don’t want to be getting into things that could compromise your security or that of your family.”

Furthermore, The Guardian noted that, “Between 2019 and 2020, the Mossad had been actively seeking compromising information on the prosecutor and took an interest in her family members.”

“Took an interest” is a euphemistic way of saying gathered information on her family — including through a sting operation against her husband Philip Bensouda — to blackmail and frighten her. These are clichéd mafia tactics.

 

-Vijay Prashad is an Indian historian, editor, and journalist. He is a writing fellow and chief correspondent at Globetrotter. He is an editor of LeftWord Books and the director of Tricontinental: Institute for Social Research. He has written more than 20 books, includingThe Darker Nations and The Poorer Nations. His latest books are Struggle Makes Us Human: Learning from Movements for Socialism and (with Noam Chomsky) The Withdrawal: Iraq, Libya, Afghanistan, and the Fragility of US Power.