Israel supporters employed countless fallacious arguments to accuse Karim Khan, the prosecutor of the International Criminal Court, of anti-Semitism when he requested arrest warrants for Israeli government leaders. Critics alleged Mr. Khan harbors an insidious hatred for the Jewish people, simply because he has not pursued prosecutions against other, admittedly more notorious criminals. The audacity! They further claimed he committed the unpardonable sin of morally equating the Israelis with Hamas. This flawed reasoning found vocal support from such esteemed voices as Joe Biden, Rishi Sunak, and Dutch Prime Minister Mark Rutte.
Israel’s defenders argue that criticizing Israel while failing to mention Palestinian crimes is anti-Semitic. Yet, if one did cite Palestinian crimes, like Mr. Khan, they would condemn it as morally equating inferior Palestinians with superior Israelis. The Simon Wiesenthal Center, led by far-right Rabbi Marvin Hier, who spoke at Donald Trump’s inauguration and raised funds for his campaign, even listed the German UN ambassador among the world’s top anti-Semites for stating: “We believe that international law is the best way to protect civilians and allow them to live in peace and security and without fear of Israeli bulldozers or ‘Hamas rockets’.”[1] Thus, one is not anti-Semitic only when one criticizes Palestinians exclusively and agrees that Israel is always right.
Khan seeks to prosecute Israeli PM Netanyahu and Defense Minister Yoav Gallant for war crimes and crimes against humanity, including the use of starvation and the obstruction of humanitarian aid as weapons of war. As a champion of international law, the Netherlands co-authored UN Security Council Resolution 2417 in 2018, which unanimously condemned these very tactics. Yet, in an ironic twist, the Dutch Parliament in 2023 rejected a resolution to urge Israel to comply with the resolution they helped author. Should the ICC judges find Israeli leaders guilty of the war crimes outlined in the resolution, it would appear that Dutch parliamentarians have inadvertently aligned themselves with these actions.
In reality, Khan harbors a pro-Israeli bias. In February, the International Court of Justice revisited the Israeli occupation of Palestinian territories. The Netherlands testified[2] that transferring one’s own civilians to occupied territories constitutes a war crime under the ICC statute. It is precisely because the ICC could prosecute Israeli settlements as war crimes that Israel has chosen not to become a member.[3] The Fourth Geneva Convention of 1949 deems the transfer of an occupying power’s civilian population into occupied territory illegal.[4] States use protocols to amend, clarify, or interpret existing conventions. The first protocol of the Geneva Convention clearly states that colonizing occupied territories is a serious war crime, which is why Israel has not signed this protocol.[5] The International Law Commission considers demographic changes in occupied territories as severe as that they “could echo the seriousness of genocide.”[6]
The crime is also easier to prove. It is plainly stated in the Israeli government agreement that the administration will colonize the West Bank.[7] Fatou Bensouda, Khan’s predecessor as ICC prosecutor, noted in her preliminary investigation report from 2015 that successive Israeli governments have been involved in planning, constructing, and encouraging settlements on West Bank territory occupied since the Six-Day War in June 1967. This settlement activity is reportedly supported by a network of policies, laws, and physical measures. Activities include authorizing settlement expansions, confiscating land, demolishing Palestinian property, evicting residents, and offering subsidies to encourage migration to the settlements and boost their economic development.[8]
For Israel, the primary goal is more territory and fewer Palestinians.[9] Palestinians have a right to an independent state in Gaza and the West Bank,[10] a right that is becoming daily less certain. Therefore, it is more crucial for the ICC to prosecute Israelis for the construction of settlements. However, Khan has not included the settlements in his indictment. He defends individuals, not the collective Palestinian right to a state. In a thousand years, history books may forget these individual victims. What will be remembered is Netanyahu’s expansion of Israeli territory, casting him as a hero to Israelis. Even if judges find Netanyahu and Gallant guilty, Israel will continue to build settlements in the West Bank, displacing more Palestinians. Eventually, all countries will have to accept this reality, even if they currently deem the settlements illegal. Khan, thus, overlooks the most significant crime with the greatest historical impact, granting Israel the freedom to fulfil its greatest aspiration.
This mirrors the Balfour Declaration, which safeguarded the “civil and religious rights” of individuals but ignored their collective aspirations for statehood. Khan’s actions are akin to those of the Israeli Supreme Court, which occasionally protects Palestinian private property but stops short of declaring the settlement policy illegal,[11] thus denying Palestinians their collective right to self-determination. Khan’s approach fits into the Western and Israeli tradition of dispossessing Palestinians of their territory with minimal bloodshed.
Notes:
- Yearly top ten list of worst outbreaks of antisemitism and anti-Israel incidents for 2019. ↑
- “As noted before, no sovereignty can be established over occupied territory – and occupied territory may not be annexed. In this regard, an important provision under the law of occupation is that the occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies102. Under international criminal law, such transfers, directly or indirectly, by the occupying Power, constitute a war crime, as reflected in the Rome Statute of the International Criminal Court.”, ↑
- “Needless to say, Mr. President, had sub-para. viii not been included my Delegation would have been able proudly to vote m favour of adopting the Statute. Now, we have no choice, we have been obliged by all those delegations here which have supported its inclusion into the Statute, to cast our vote against the Statute as a whole, because we have been permitted no other means of expressing our frustration and disdain at this gratuitous politicisation of the Statute and the Court. Clearly we cannot voice our approval of the Statute with such a provision forming part of it. We regret being obliged here today to vote in a way that prevents us, as victims of genocide, founding fathers of the concept and idea of the International Criminal Court, to vote in favour of its Statute.”, Statement by Judge Eli Nathan Head of the Delegation of Israel ↑
- “The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.” ↑
- “The violation in Article 8(2)(b)(vii) is based on the broader provision in Article 49 of the Fourth Geneva Convention of 1949, now recognized as a grave breach in Article 85(4)(a) of Additional Protocol I. The scope of these prohibitions is broader, as they govern not only the transfer of population of the occupied territory to other parts of that occupied territory or to places outside the occupied territory, but also the transfer by the occupying power of parts of its own civilian population into occupied territory. The latter aspect was politically controversial during the negotiations. Israel was not a party to the Additional Protocol I, largely because of this provision, and emphatically disagreed that this aspect was part of customary international law. It stood, however, rather isolated in this position and was supported, to a certain extent, only by the United States.”, H.v. Hebel, and D. Robinson. “Crimes within the jurisdiction of the court.” In The International Criminal Court: the making of the Rome Statute: issues, negotiations, results, edited by R.S. Lee, 1999. pp.112. ↑
- “Article 22. Exceptionally serious war crimes(b) establishment of settlers in an occupied territory and changes to the demographic composition of an occupied territory;
…
Comment: (7) Under subparagraph (b) it is a crime to establish settlers in an occupied territory and to change the demographic composition of an occupied territory. A number of reasons induced the Commission to include these acts in the draft article. Establishing settlers in an occupied territory constitutes a particularly serious misuse of power, especially since such an act could involve the disguised intent to annex the occupied territory. Changes to the demographic composition of an occupied territory seemed to the Commission to be such a serious act that it could echo the seriousness of genocide.”, International Law Commission. (1991). Draft Code of Crimes against the Peace and Security of Mankind. United Nations. Yearbook of the International Law Commission A/CN.4/SER.A/1991/Add.l (Part 2).pp.104-106. ↑
- “The government will act in accordance with the following guidelines:The Jewish people have an exclusive and inalienable right to all parts of the Land of Israel. The government will promote and develop the settlement of all parts of the Land of Israel – in the Galilee, the Negev, the Golan and Judea and Samaria.”, Keller-Lynn, Carrie Bachner, Michael C. Keller-Lynn, and M. Bachner. “Judicial reform, boosting Jewish identity: The new coalition’s policy guidelines.”, The Times of Israel, 28 December 2022. ↑
- “Successive Israeli governments have allegedly led and directly participated in the planning, construction, development, consolidation and/or encouragement of settlements on West Bank territory occupied during the Six-Day War (June 1967). This settlement activity is allegedly created and maintained through deliberate implementation of a carefully conceived network of policies, laws, and physical measures. Such activities are alleged to include the planning and authorisation of settlement expansions or new construction at existing settlements; the confiscation and appropriation of land; demolitions of Palestinian property and eviction of residents; and a scheme of subsidies and incentives to encourage migration to the settlements and to boost their economic development.”, Office of the Prosecutor, Report on Preliminary Examination Activities (2015), 12 November 2015, para. 68 ↑
- “The Likud government that came to power in 1977 was ideologically and politically committed to allowing and promoting Jewish settlement in all parts of the historic Land of Israel.2 Arguments for such settlements were not dressed in the strategic and security terms largely used by the Labour Party, but in religious and nationalistic terms. Settlement planning was directed by the Rural Settlement Division of the WZO, headed by Matityahu Drobles, a member of the Herut Party (one of the original components of the Likud Party). The first settlement plan, drawn up by the WZO in 1978, envisaged a chain of settlement ‘blocs’ along the densely populated highlands of the West Bank. This plan stated quite openly that the objectives of the settlements were to ‘reduce to the minimum the possibility for the development of another Arab state in these regions’ and to make it difficult for the local Palestinian population ‘to form a territorial continuity and political unity when it is fgmented by Jewish settlements’.”, Kretzmer, D., Ronen, Y. (2021). The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories. Oxford University Press.p.180. ↑
- “The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.”, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations. A/RES/2625(XXV). ↑
- “Most cases dealing with civilian settlements were brought by Palestinian landowners who contested the legality of the taking and use of their land for this purpose. In these cases the Court distinguished between individual petitioners’ claims that their property was taken illegally, and the legality of establishing civilian settlements in the Occupied Territories. The political sensitivity of the latter question could make it non-justiciable, but this did not affect the justiciability of individual property rights.” .”, Kretzmer, D., Ronen, Y. (2021). The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories. Oxford University Press.p.33. Seel also: “the Court has consistently refrained from ruling on the legality of establishing settlements in the Occupied Territories.”. p.256. ↑
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