Why Is It So Easy For The International Criminal Court To Charge Russians, But Not Israelis?

Karim Khan, the prosecutor for the International Criminal Court, noticeably gave far more attention to the onslaught on October 7—which was spearheaded by Hamas—than to any other actions carried out by the Israeli military in the Gaza Strip, raising the question: Why is it so easy for the International Criminal Court to charge Russians but not Israelis?

The International Criminal Court’s prosecutor made a statement during the early weeks of the Gaza-Israel conflict suggesting that hindering aid to Gaza would be illegal. However, it was subsequently disclosed that the prosecutor had visited Israel and now facing charges of delaying the court’s investigation into war crimes. Stanley Cohen, an American lawyer, told RT that “the Rome Statute should be null and void if this is not a case that calls for an international tribunal.”

Karim Khan, the prosecutor for the International Criminal Court (ICC), warned the Israeli government on October 29 that obstructing the delivery of supplies to Gaza would result in “criminal responsibility” under the Rome Statute. But in a speech given in Cairo, the capital of Egypt, Karim Khan noticeably gave far more attention to the onslaught on October 7—which was spearheaded by Hamas—than to any other actions carried out by the Israeli military in the Gaza Strip. Some have questioned whether the ICC will help address crimes perpetrated in Palestine-Israel in the wake of the prosecutor’s remarks.

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In Cairo, renowned American lawyer Stanley Cohen responded to Karim Khan’s statements. According to Cohen, Khan “made rather affirmative declaratory arguments about what happened, how, when, where, and what Hamas and the Qassam brigades did.” In the lack of impartial analysis and independent proof, partially derived from propaganda misrepresentation, alternative intelligence data was released. “Given the commentary that the prosecutor made, if I were one of the attorneys representing Palestinians in front of the ICC, I might ask him to recuse himself,” Cohen continued.

The International Criminal Court (ICC) formally began looking into allegations of war crimes that all parties involved may have committed in Palestine between June 13, 2014, and March 20, 2021. In principle, this would imply that recently committed crimes might be the focus of an investigation and that the perpetrators might face legal action. Additionally, Human Rights Watch and B’tselem, the leading human rights organization in Israel, claimed in 2021 that the Israeli government was enforcing an Apartheid regime against the Palestinian people. Amnesty International did the same in 2022, publishing a comprehensive report outlining its rationale for choosing to charge Israel with the crime of apartheid. According to the Rome Statute, the ICC is authorized to bring criminal charges against Apartheid.

In a speech at the Reagan National Defence Forum in Simi Valley, California Pentagon Chief Lloyd J. Austin III said that Israel could face strategic defeat if Palestinian civilians are not protected.

However, despite the prosecutors’ “professed desire to improve the credibility of the court and his private protestations that he cares about the question of Palestine,” as noted in September by the US-based think tank Arab Centre Washington DC, “little has been done” by the ICC over the past two years. The relatives of the Israelis slain on October 7 have requested the ICC to look into claims that Hamas committed crimes, even though Israel has declared that it “will not cooperate” with the court in protest of its planned inquiry into war crimes in 2021. Given that the Israeli government has maintained that the ICC has no jurisdiction over their country, this presents a challenge to their position. However, Hamas applauded the ICC investigation into war crimes, while defending its actions.

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The International Criminal Court in Hague. ©  Getty Images/legna69

Stanley Cohen provided the following response when asked why the ICC has not yet proceeded with the indictment of those guilty of crimes committed in the occupied Palestinian territories:

“They returned an indictment against Putin on the basis of ex parte claims, certainly probable cause, within four days. In the case of Israel you’ve had nine years to find, investigate and corroborate systemic violations of international law, the violation of the law of war, human rights violations, collective punishment, violations of the humanitarian code, crimes against humanity. War crimes.”

Cohen also added the following: “I don’t know why it’s taken two years… There should be an ongoing investigation right now. I was involved in the preliminary applications for the ICC. There have been, just hundreds and hundreds and hundreds of declarations, of affidavits, of videos, of films, of admissions, of statements over the last nine years now, that the ICC has. The cynic in me imagines or wonders whether this, the same piece would’ve taken the speed if the targets were African, if they were black, because the ICC has a history of moving with deliberate speed when it involves African defendants or targets, or people of color.”

The question of whether the International Criminal Court (ICC) is treating crimes against Palestinians with the same seriousness arises because the number of children killed in Gaza alone as a result of Israel’s war on the besieged coastal enclave is more than six times higher than the total number of Israeli civilian deaths from October 7. The court’s legitimacy may be preserved if that case moves on and looks into the endless list of war crimes committed throughout Palestine and Israel. African leaders have accused the court of unfairly targeting their country. Some have even proposed renaming the ICC to the African Criminal Court because most of its indictments have been granted to individuals on the African continent.

Worse, as soon as it was known that ICC prosecutor Karim Khan had visited Israel, he promptly scheduled meetings with Palestinian human rights organizations and President Mahmoud Abbas. His request to meet was denied by human rights organizations situated in the occupied regions. The impartial Commission for Human Rights (ICHR) director general, Ammar Al-Dwaik, stated that “the way this visit has been handled shows that Mr. Khan is not handling his work independently and professionally.”

According to Stanley Cohen, “there are lots of options” beyond the International Criminal Court when it comes to the prosecution of war crimes, including the International Court of Justice (ICJ). “You also then have the situation of courts with universal jurisdiction such as South Africa and Spain and about a dozen or so other countries, which I have no doubt will also be initiating investigations under universal jurisdiction,” he said.

Whether the ICC takes action now will either be its only hope for survival or permanently damage the court’s credibility. With more explosives being thrown on the besieged region than the nuclear weapon the US detonated against Hiroshima, the scope of the atrocities currently being committed in Gaza is hard to put into words. In the meanwhile, access to fuel, power, food, water, medical care, and other necessities is either strictly restricted or prohibited. Approximately 20,000 people have been killed, 1.5 million residents have been displaced, and up to 30,000 people have been injured.

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