The South African Zionist Federation’s Rolene Marks objects to the way in which Daily Maverick’s Kevin Bloom commented on the arrest warrants issued by the International Criminal Court for Israeli Prime Minister Benjamin Netanyahu and his former defence chief, Yoav Gallant.
A credible court must of necessity be an impartial court. Whenever there is a reasonable apprehension of bias on the part of a court’s officials, then that ipso facto renders the findings of such a tribunal null and void. It does not even matter if, based on the evidence, the verdict arrived at is probably the correct one. Once there is a demonstrable element of bias, it follows that a mistrial must be declared and the entire case thrown out. This is a fundamental principle of jurisprudence.
If this is true in cases where only individual litigants are involved, then how much more so should it be when an entire country is put on trial. That alone, even before one goes into the merits or otherwise of the matter at hand, is a reason why the recent decision by the International Criminal Court (ICC) to issue arrest warrants against Israeli Prime Minister Benjamin Netanyahu and his former defence minister Yoav Gallant should be dismissed out of hand.
The self-evident, politically driven bias of the ICC and the manner in which it has been hijacked by those bent on waging an ideological vendetta against Israel features nowhere in Kevin Bloom’s Daily Maverick article of 24 November 2024 (“High noon at the ICC: Zionism’s intractable Netanyahu problem”).
Rather, Bloom focuses on the consternation the ruling has caused in mainstream Jewish leadership circles, citing a string of angry denunciations and then proceeding to attempt to discredit them.
In my capacity as spokesperson for the SA Zionist Federation, I was one of those who was quoted and scornfully dismissed. According to Bloom, I was engaging in mere “hyperbole” that “if anything, was a sign of (my) organisation’s desperation”. Well, Mr Bloom, we in the South African Zionist Federation are not “desperate”. It would be more true to say that we do “despair” sometimes — despair at the apparently infinite capacity of certain powerful lobbies around the world to twist the truth and pervert justice, and yet somehow be allowed to get away with it.
From Bloom’s analysis one would never think that those deploring the ruling have any substantive reasons for doing so. Substantive reasons do exist, however, in abundance. Detailed, chapter-and-verse refutations of the charges against Israel were submitted by both Israeli and independent international organisations, yet the judges of the ICC chose not to take them into account. Instead, they appear to have adopted the accusations and allegations as fact.
Thrown out on review
Had any ordinary court of law conducted itself in a similar way, its finding would have immediately been thrown out on review. Indeed, mistrials have been declared on account of very much less.
The explicit partisanship that rendered the whole process worthless from the start was exemplified by the conduct of the ICC’s Chief Prosecutor Karim Khan. An international body entrusted with the serious task of investigating the gravest of charges against sovereign states must by necessity discharge its duties in as even-handed a manner as possible, thoroughly considering the evidence provided by all the relevant parties.
Not only did Khan fail to do that but he demonstrated by his public statements and modus operandi that he had prejudged the issue, declaring from the outset that Israel was guilty as charged and that it was just a matter of cobbling together the necessary evidence to “prove” that.
This hardly comes as a surprise as Khan has never made a secret of his virulent antipathy towards Israel. The correct thing, given his pronounced biases, would have been to replace him for this purpose with someone who might be expected not to let his/her personal views and agendas interfere with the investigation process. Of course, that never happened, which was to be expected given that this whole process was never about seeking justice at all, but about using the mechanism of the ICC to damn and demonise the Jewish state.
The charges formulated by Khan accused Israel, along with the crimes of murder and persecution, of using starvation as a weapon of war in a “widespread and systematic attack against the civilian population of Gaza”. In concocting his case, he did not hesitate to rely on the claims made by consultants with documented histories of anti-Israel bias.
By contrast, he not only disregarded submissions from any friends of the court (amici curiae) who’d made representations about the inaccuracy of the charges being brought, but went so far as to tell the court to do so.
And to its enduring disgrace, the court complied.
Israel’s case was placed before the ICC on 5 August 2024 by the High Level Military Group, an association of military leaders and officials from Nato and other democratic countries.
Whereas Khan consistently failed to provide substantive proof for Israel’s supposed wilful and deliberate starvation of the civilian population in Gaza, and its “intentionally” directing attacks against them, the High Level Military Group findings were based on solid, first-hand evidence. Its investigations, conducted during an in-country assessment in July 2024, involved visiting Israel Defence Force (IDF) military headquarters from the top level, humanitarian aid installations and operations, units down to battalion level of command and visits inside Gaza itself.
According to the High Level Military Group’s assessment, the IDF had made sure to operationalise the Israeli government’s stated policy to “flood Gaza with aid”. This itself, the report observed, was “counter-indicative of and inconsistent with any plan or intent to employ starvation as a method of warfare at any stage in this conflict”.
This was just one aspect of Khan’s case that the High Level Military Group findings debunked. And yet the ICC judges appear to have completely disregarded this report. Likewise, they ignored the results from a scientific study authored by a group of Israeli academics and public health officials demonstrating that food shipments to Gaza were enough to feed the enclave’s entire 2.4 million population, and that the nutritional content of the aid provided exceeded the internationally accepted Sphere guidelines.
The court apparently did not think it worthy of note that the distribution of food, as well as other vital goods had been hampered by looting by Hamas members and criminal groups. Hamas has reportedly earned at least $500-million from the sale of captured aid since the beginning of the war.
Disregarded evidence
These were just two instances of the court’s disregard of evidence brought in Israel’s defence. That the ICC judges uncritically accepted Khan’s unsubstantiated accusations while paying no heed to what the accused party and its supporters around the world had to say is reflected as much by what they didn’t, as what they did, include in their judgment.
Together with the warrants, the press release the ICC issued setting out the rationale for the decision contains no indication whatsoever that in going to war with Hamas, Israel was engaging in a justifiable act of self-defence in accordance with international law, following Hamas’s murderous rampage on 7 October 2023.
Nor in their justification do the judges refer to the fact that Hamas had embedded its militants within the civilian structure of Gaza, and likewise they make no acknowledgement of the extraordinary steps taken by Israel to warn the population of impending military operations.
The Israeli government’s response to the verdict is worth quoting here: “We issue millions of text messages, phone calls, leaflets to the citizens of Gaza to get them out of harm’s way — while the Hamas terrorists do everything in their power to keep them in harm’s way, including shooting them, using them as human shields.”
One could go on and on, but the point surely has been made. As The Lawfare Project puts it in its statement following the release of the judgment: “The ICC’s actions not only undermine Israel’s sovereignty but also betray the very principles of fairness and impartiality that international law is meant to uphold.”
Those who defend the ICC ruling have pointed to the fact that an arrest warrant was also issued against Mohammed Deif, who led Hamas’ military wing and was one of the masterminds behind the 7 October 2023 atrocities. Actually, Deif’s inclusion appears to be no more a bogus gesture of impartiality on the part of the court, aimed at creating a false illusion of even-handedness. That Deif happens to be dead, something both Khan and the ICC judges would have been well aware of, simply underlines this fact.
Morally repugnant equivalence
Much more problematic is the morally repugnant equivalence that is being drawn between Israel’s legitimate acts of self-defence and those who carry out barbaric terrorist attacks against its citizens, whether military or civilian.
Dozens of democratic nations have already condemned and distanced themselves from the ICC ruling, and not just because they recognise its inherent injustice and are sympathetic towards Israel. What is being set here is a very dangerous precedent, one that conveys to the world the unmistakable message that Western liberal democratic states are not permitted to exercise lawful self-defence, that even when they comply with the laws of armed conflict they risk being defamed and lied about and that these deliberate misrepresentations will then be used to fuel political agendas against them in the international courts.
Countries like the US and UK are among the most likely targets of these “lawfare” tactics. They are well aware that the hijacking of the institutions of international law by anti-Israel fanatics needs to be taken extremely seriously, since what starts with Israel is very unlikely to end with it.
The ICC ruling is a spectacular coup for those who have long sought to hijack the institutions of international law for purposes of criminalising the legitimate actions of the world’s sole Jewish state. But for international law it is a disaster from which it might never recover.
To quote again from The Lawfare Project release, the decision “is emblematic of a broader lawfare campaign aimed at delegitimising and demonising Israel by weaponising international law as a tool of political warfare. It emboldens those who exploit legal mechanisms to perpetuate Jew-hatred under the guise of pursuing justice.”
Brendan O’Neill, the chief political writer for Spiked, sums it all up as well as anyone has done: “It isn’t only Israel that has been thrown to the wolves of unreason by the ICC and its powerful backers — so has civilisation itself. These arrest warrants are worthless and offensive. Every civilised state should rip them up.”
This article first appeared in Daily Maverick by Rolene Marks, Spokesperson, South African Zionist Federation
