ARRESTING TIMES IN THE INTERNATIONAL CRIMINAL COURT

The Jews are the canaries in the mine again

So. The Jews are the canaries in the mine again.

On 21 November 2024, Pre-Trial Chamber I of the International Criminal Court (‘Court’), in its composition for the Situation in the State of Palestine, unanimously issued warrants of arrest for Mr Benjamin Netanyahu and Mr Yoav Gallant denying challenges by Israel, which pleaded lack of jurisdiction and seeking a deferral of the investigation.

The Chamber found reasonable grounds to believe that Mr Netanyahu and Mr Gallant bear criminal responsibility for the war crime of starvation as a method of warfare.

The Chamber also found that there were reasonable grounds to believe that the lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration. This despite, “On the basis of material presented by the Prosecution covering the period until 20 May 2024, the Chamber could not determine that all elements of the crime against humanity of extermination were met..” bur finding “.. the Chamber did find that there are reasonable grounds to believe that the crime against humanity of murder was committed in relation to these victims.”

I’ll tell you what upsets, depresses and angers me. It’s not simply that Israel is being targeted by an international institution yet again. It’s that, all my adult life, I have devoted it to the Rule of Law. I’ve practiced law since I left school at the age of 18. I’m now 75 and still working.

For all the ups and down in my professional life (and we all have them), I have been proud to be privileged to represent one of the pillars of society, Justice. Without the rule of law, there would be chaos, the powerful would have dominion over society and the weak and vulnerable would succumb.

So what particularly disturbs me (and as you can see, I am trying to moderate my language) is the corruption of what should be an invaluable and essential world-wide institution, namely the ICC.

I don’t make this allegation lightly. In short, as within the UN and its various ‘human rights’ agencies, there is an inbuilt bias against Israel.

Greg Rose of the The Australia/Israel & Jewish Affairs Council (AIJAC) has written “An integral purpose of the ICC’s political project has always been to delegitimise Israel. A target was drawn on Israel in the 1990s during the drafting of the Rome Statute for the ICC. The Organisation for Islamic Cooperation made this a condition of participation by Muslim countries. With 57 members, the OIC is the world’s biggest organisation by membership (other than the UN itself). Its participation was necessary for the global criminal law project to proceed.

“The OIC required that the ICC definition of forced transfer of civilian populations be expanded as a war crime. New language introduced into the Rome Statute criminalised voluntary civilian migration of Jews into the areas of Jerusalem, Judea and Samaria now called the West Bank. Although the ICC statute codified other existing war crimes, this became a new retrospective war crime invented in the Rome Statute.”

Which brings us to the role of the current Prosecutor. As Rose writes “The ICC is an effective tool to delegitimise Israel only if actively used by ICC staff. This brings into focus the role and politics of its chief prosecutors. Karim Khan, the current chief prosecutor”.

Apart from well reported allegations against him regarding sexual harassment upon which I will not comment. However, as Jimmy Cricket, the comedian, would say ‘.and there’s more..’

Karim Khan KC, a member of the English Bar, and the Prosecutor of the International Criminal Court, and some of his staff face disciplinary investigations regarding his applications to arrest Israeli leaders. UK Lawyers for Israel (UKLFI)-an organisation of which I am a member- has reported them to regulators for not complying with their professional obligations.

UKLFI points out that they were obliged to provide the Court with information and evidence that exonerates the accused, Israel’s Prime Minister, Benjamin Netanyahu, and Defence Minister, Yoav Gallant of the charges, including extensive information and evidence that has come to light since the applications were had provided extensive details of its concerns, backed by numerous cited documents, to the Prosecutor in a letter and annexes on 27 August 2024.

Having received no reply, UKLFI has now reported the Prosecutor, Karim Khan KC, and his assistant, Andrew Cayley KC, both English barristers, to the Bar Standards Board for England and Wales (BSB). UKLFI accuses Khan and Cayley of not complying with their duty not to mislead the Court.

And so, here is a court (and to which, I would remind readers, neither Israel, nor the USA are subscribers) ruling against a democratic sovereign country which for over a year has been fighting for its very existence on multiple fronts against internationally recognised and accredited terrorists, supported by autocratic anti-Western religious theocratic war- mongering gangsters. A regime under which the Iranian people who are largely pro-Western are brutally subjugated.

It is self evident that the allegations are demonstrably false. Supplies are getting in and being looted by Hamas. Civilians are dying because terrorists are embedding themselves amongst the civilian population. Israel has the most moral army in the world.

Col. Richard Kemp, the former commander of British forces in Afghanistan and head of the international terrorism team at the British Joint Intelligence Committee has praised the performance of the IDF in Gaza and says:

“There’s a very prevalent view that Israel is acting unlawfully, committing war crimes, and depriving people of Gaza of humanitarian aid. I’ve been in Israel for the last six months, including on the ground in Gaza and I’d like to explain the reality“ he said.

Kemp said it’s clear the Hamas strategy is deliberately aimed at forcing Israel to kill Gazan civilians, because that then results in international outrage.

“My experience of monitoring the IDF actions, is that Israel is taking absolutely unprecedented and extremely effective measures to minimize civilian deaths. Despite what many people proclaim, who know nothing about it, [is that] Israel has achieved what I estimate to be the lowest proportion of civilian to military casualties in any conflict in modern times” he said.

When this ruling came out yesterday my thoughts turned to a film which has always stayed with me, that is Stanley Kramer’s 1961, ‘Judgement at Nuremburg’. Set in Nuremberg, West Germany, the film depicts a fictionalized version – with fictional characters – of the Judges' Trial of 1947, one of the twelve Nuremberg Military Tribunals conducted under the auspices of the U.S. military in the aftermath of World War II. The ICC is a derivative and consequence of the Nuremberg courts.

The film centres on a military tribunal led by Chief Trial Judge Dan Haywood (Tracy), before which four judges and prosecutors stand accused of crimes against humanity due to their senior roles in the judicial system of the Nazi German government.

In the final scenes, a former distinguished jurist, ‘Dr. Ernst Janning’- played by Burt Lancaster (pictured above), insists against his own counsel’s advice, on giving evidence and confesses to his shame. He talks about his judgement in a ‘racial purity’ case.

“What about those of us who knew better? We who knew the words were lies, and worse than lies? Why did we sit silent? Why did we take part? Because we loved our country. What difference does it make...if a few political extremists lose their rights? What difference does it make if a few racial minorities lose their rights? It is only a passing phase…”

“It is not easy to tell the truth. But if there is to be any salvation for Germany...we who know our guilt must admit it...whatever the pain...and humiliation. I had reached my verdict...on the Feldstein case...before I ever came into the courtroom. I would have found him guilty, whatever the evidence. It was not a trial at all. It was a sacrificial ritual...in which Feldenstein, the Jew, was the helpless victim.”

In the ICC, people in black robes sit to pass judgement on the democratically elected leader of a sovereign civilised country founded to protect its citizens. and world-wide Jewry, against another holocaust, a victim as it is, of attempted genocide by a terrorist organisation whose stated aim is the extermination of Jews.

‘Love of country’ might have been the explanation for the corruption of the judicial system in Hitler’s Germany. But underlying it was the willingness to accept rhetoric that Germany’s depressive economy was due to ‘the other’, Jews, other racial and ethnic minorities, undesirables, homosexuals.

We live in more sophisticated times where justification is softened by less colourful language but the prejudice against Jews and their nation state remains. The truth is, whatever Israel would have done to defend itself, it would have been wrong in the eyes of much of the world. However much humanitarian aid reached Gaza, it would never have been enough. However many civilians died, it would have been too many.

My faith in the international rule of law has been severely shaken.

In Numbers 23:9, the wicked prophet Balaam stares at the Jews, freshly freed from slavery in Egypt, and says: I see them from the tops of the mountains. I gaze on them from the heights. Behold, they are a nation that shall dwell alone, and not be reckoned among the nations. [Num. 23:9] .

The Midrash (a mode of biblical interpretation prominent in the Talmudic literature) says that this phrase means: When Israel rejoices, no other nation rejoices with them... And when the [other] nations prosper, Israel will prosper with them… [Tanchuma Balak 12, Num. Rabbah 20:19] .

Jews have always stood alone. Successfully so for more than 3000 years. They, and their nation state to which they have returned will continue to do so. This madness will pass and those who persecute the victim will, in time ask themselves

“What about those of us who knew better? We who knew the words were lies, and worse than lies? Why did we sit silent? Why did we take part?”