The Poisoned Chalice of ICC

This article was first published at ongenocide.com and is syndicated here with permission of the author

Many people reacted to the ICC’s prosecutor’s application for warrants for 2 Israeli and 3 Hamas officials as some sort of triumph, a signal moment for the growing pressure to hold Israeli leaders accountable, but it is not. People for whom I normally have utmost respect are steadfastly ignoring the ICC’s record and refusing to think through the actual ramifications of these charges. A simplistic, even childish, authoritarianism seems to grip them, leading them to the delusion that some stern authority figure will get the baddies and make everything right. Even the admirable Francesca Albanese asserted that this is a “watershed”. It is not a watershed, nor is it simply an empty gesture, it is a disaster in the making. 

Though two of the three Palestinians referred for charges have subsequently been killed, it still sets a dire precedent that a highly political process can be used to charge leaders of a resistance group as if on a par with the leaders of the occupying force. It would be bad enough if leaders of victim and aggressor groups were treated with parity, but the whole process is weighted against the Palestinians. As I will demonstrate the grounds on which the ICC prosecutors referred charges against Palestinian leaders are almost infinitely more permissive than those for laying charges against Israeli leaders. If this is unchallenged it will create an easy pathway for hostile powers to control Palestinian politics and excise effective resistance leaders by forcing Palestinian authorities to exclude or even arrest them.

This is an incredibly difficult topic to write about because it involves so many common misconceptions and ideological pieties. The ICC has been called the International Caucasian Court and the Imperialist Criminal Court and has been widely criticised for its self-evident flaws, but still the Court is discussed by officialdom and the punditocracy as if it were some hallowed and grave edifice of ultimate international justice. The public has no choice but to accept this at face value, and no matter how extreme the failings of the court that is unlikely to change because of extant critiques. The problem is that choosing individual flaws simply allows our leadershippers¹ to make promises of reform and continue to treat the Court as a sacrosanct institution. In a parallel universe it might be reformed, but in our real world it is incorrigible and needs to be disestablished.

In some ways the ICC is the criminal justice system in a settler-colonial state called Earth and, like all criminal justice systems of the settler-colonial states, it is inherently oppressive. Complaints about its biases have simply led to promised reforms and seemingly its abysmal record does nothing to stop the amplified class (those who monopolise public political conversations) from gaslighting the public into respecting the institution while the voiceless few with untainted knowledge simply look on in horror. In moral terms the reactions of the official world are truly equivalent to someone finding that their workmate is a cannibal serial killer and dealing with the issue by buying them a vegetarian cookbook and brightly talking about meatless Mondays around the water cooler in order to model a more healthy lifestyle. 

¹ I am fairly sure that “leadership” is now a verb. It is completely intransitive, because you don’t leadership people, you just leadership in a Platonic way.

There is no way of fixing the ICC’s bias because selecting individuals to prosecute in order to end impunity for crimes of mass violence is inherently political in a world of so much mass violence. No leader of a militarily strong country is likely to be arrested and tried and those countries, either directly or through proxies, cause almost all of the mass atrocities in this world. The very nature of the court is selective and intended to have a salutary impact. This sounds very reasonable at face value, but we have a phrase that describes such procedures. That phrase is “show trials”. 

On an even deeper level, however, the ICC is part of a broader political move to maintain and deepen an international system of injustice. Rather than allow international judicial institutions to develop a transparent international justice system wherein states that are adjudicated to be committing grave crimes are placed under the collective pressure of a genuine international community, the US jealously guards the ability of its State Department to declare certain countries to be malefactors, to impose sanctions, and to punish those who do not conform with those sanctions. The ICC’s focus on individual criminality helps this process by pushing the focus onto individually or racially demonised enemies of the West while providing easy exculpation for Western leaders (who by default are accorded the assumption of benevolent intentions regardless of the nature of their acts).

For this reason I have to treat the ICC for the hydra that it is. It is insufficient to concentrate on just one aspect of its flaws. If the resulting word count is daunting, I apologise. Consider, though, that Norman Finkelstein wrote an entire book entitled I Accuse!: Herewith A Proof Beyond Reasonable Doubt That ICC Chief Prosecutor Fatou Bensouda Whitewashed Israel just to try and nail down one indisputable instance of corruption.

The “End of Impunity”

The story goes that the impulse to create the ICC was born out of discomfiture at the ad hoc nature of the International Criminal Tribunals for Rwanda and Yugoslavia (ICTR and ICTY). The claim was that rather than have any possible accusation of victor’s justice there would be a permanent body that would be all the more effective because it would end, or at least erode, the impunity enjoyed by leaders in sovereign nations. The risk of prosecution would, in this fairy tale, be credible enough to provide a genuine deterrent against the commission of the gravest crimes.  Instead, as mentioned, the court showed itself to be corrupt and biased from the outset. In addition it seemed to be coyly trying to avoid any move that might come back to bite its Western masters in the buttocks. For example, the Rome Statute laying out the jurisdiction of the Court did not include the crime of aggression until 2010, sidestepping some awkward conversations about the acceding states that had joined in the US-led invasion and occupation of Iraq. 

From the heady days of 20 years ago (when the court promised to end the impunity of all the barbarous warlords whilst studiously ignoring the blatant crimes that the US was committing in its “War on Terror”)² things have almost come full circle to the point where even their greatest supporters would have trouble suggesting that their “justice” is any less selective than that of ad hoc tribunals. The court works very slowly and must of necessity be selective. Now that it is issuing warrants for citizens of states who are not party to the Rome Statute, it is effectively cherry-picking from the entire world in a manner that is quite arbitrary in terms of gravity. On the other hand, from a political perspective the choices it makes are far from arbitrary and are invariably in accordance with the Western media discourse about the sort of person who is guilty. 

² Just a little reminder here that when the ICC was inaugurated the US was plunging into a mad era of blatant criminality. They had invaded Afghanistan in an obvious act of aggression, they had created an international system of abduction and torture, their siege of Iraq was estimated to have taken 1 million lives including 500,000 children, and the crimes were accelerating with an invasion of Iraq clearly on the horizon. I mention this because we are continually hypnotised by the miscontextualisation of historic events like this, to the extent that we don’t really appreciate how morally and intellectually bankrupt the ICC’s boosters actually were right from the outset.

A Chalice of Kool-aid?

It is impossible for me to avoid thinking of the Kool-aid metaphor when I see people celebrating the ICC chief prosecutor’s decision to pursue charges relating to the current slaughter in Gaza. My gut reaction is that this is an ugly egocentric response amongst people who want to be able to declare “we are winning”. It is stupid and superstitious in the manner that using bleeding to treat tuberculosis or trepanning for epilepsy was superstitious. The existence of a serious problem does not validate a “solution” that only brings more harm. It depresses me to see people slurping this Kool-aid with such relish, but I understand that not everyone has the privilege of discernment. For the Palestinian people it is better described as a poisoned chalice. The Kool-aid drinkers actively choose to ignore the poison³, but those offered the chalice may be dying of thirst; they may drink in desperation even knowing that there may be poison. That only redoubles the need for those of us with the luxury of some detachment to be realistic about the actual significance of the ICC charges against Hamas and Israeli leaders. 

Netanyahu and Gallant will likely never see the inside of an ICC court, and if they do it will only be the final indication that they are no longer of any use to the Zionist project of genocide in Palestine. Charging two people for crimes is obscenely inadequate during a genocide in which hundreds of thousands, if not millions, are actively participating (including perhaps as many outside of Israel as within it). These tokenistic charges can only ever serve to demonstrate de facto impunity and fuel backlash. We are witnessing a brutally violent genocide unfold and the ICC has sought more charges against leaders of a resistance organisation than against the perpetrators of the genocide. On the other hand, the charges against Haniyeh, Sinwar and “Deif” may cause, and are certainly aimed at causing, very serious problems for Palestinians. They will sow conflict, further pushing the “internationally recognised” but democratically deficient Palestinian Authority into the role of a collaborator regime. If this becomes a precedent the Western controlled ICC will bring or threaten charges against any resistance leader whom it considers problematic, and the PA will have to hunt them down if it values being “internationally recognised”.

On the surface the theatrics of international relations seem to suggest that Israel genuinely fears the ICC, but in public diplomacy all is never what it seems. Revelations that the Israelis have been spying on and manipulating the ICC seem to imply that Israel regards the ICC as a serious threat. The assumption is that the ICC has a business-as-usual and that Israel’s covert activity intended to disrupt its normal function is fallacious. The spying is just one of a number of control mechanisms used by the Zionist powers to steer the ICC. In reality the practice of constantly besieging international organisations covertly and overtly is normal practice for the US empire. Covert action works along with diplomatic and propaganda efforts that discipline individuals in such organisations. For example the US spied on the members of the United Nations Security Council leading up to the 2003 Iraq War, but this was in support of far more powerful public and private diplomatic actions. 

Covert action is not a disruption, it is part of the mode of control, and the ICC is not some independent body being undermined, it is already penetrated through and through. Israeli spying might as well be intrinsic to the organisation. To illustrate what I mean, consider the revelations that Israel used its surveillance to detect incidents that attracted the ICC prosecutors attention and would intercede by announcing its own investigation which then triggers Article 17 of the Rome Statute. This states that cases become inadmissible if the “case is being investigated or prosecuted by a State which has jurisdiction over it”. In theory the ICC could still pursue charges if they feel that charges are not “genuinely” being pursued, but the action required for Israel to compel the ICC to drop a case is far less than any reasonable definition of “genuine”. It is important to note that spying on the ICC may help Israel to fine-tune this control mechanism but it is not a necessary part of the equation. Even if a case has been opened it can easily be closed in this manner. For example, the ICC opened an investigation into UK war crimes in Iraq then stopped it in 2006, began it again due to the UK’s inaction in 2014, but then shut it down again in 2020. The ICC evinced “concerns” but considered that 15 years of apparent prevarication but cited a judgement that “courts do not base their decisions on impulse, intuition and conjecture or on mere sympathy or emotion”⁴ – a formulation which is both emphatic and vague enough to be used for almost any occasion. The upshot is that if you openly refuse to do anything about the crimes of your personnel the ICC can act, but if you hire a bunch of people to actively do nothing for decades the accused need never fear. Of course, not all states are accorded the privilege of this effective impunity. For that you need “credibility”, which is generally code for having a pale-skinned citizenry. But that isn’t the only catch that works in the favour of the rich and powerful.

You may ask – why does the government of the UK have jurisdiction over crimes committed by UK personnel in Iraq and not, say, the government of Iraq? Well, the way it works is this: if you invade a country and overthrow its government then you have jurisdiction. This is often framed as a burden of responsibility, but it is quite obviously a useful tool for military aggressors. The Rome Statute was written with complete foreknowledge that this is the case and the intrinsic injustice of it does not seem to bother the ICC at all. That is because, as I will detail more fully later, the ICC is part of a project to atomise International Humanitarian Law such that powerful states have full impunity, their officials and personnel have de facto impunity, and officials of weak states are often subject to a credible threat of prosecution at the behest of European powers or even the US (which openly calls for the ICC prosecutions such as that of Uhuru Kenyatta despite not being party to the Rome Statute). 

So why does Israel have jurisdiction over crimes committed in occupied territories that no other state recognises as being part of its sovereign territory? Why? Because it is the occupier and as such it bears the weighty and burdensome responsibility to investigate whenever it feels that its personnel may have done something bad. Thus when video footage emerges of Israeli personnel torturing prisoners, Mark Miller is smirkingly content to repeat ad nauseum that these serious concerns must be investigated by Israel and the IDF. Hence we get the phenomenon that we untrained people view as the perpetrator (Israel) investigating itself and finding itself innocent of all charges⁵. But in this model Israel itself is never under a cloud of suspicion. The very nature of a criminal proceeding is to select certain individuals as suspects (they cherry-pick bad apples, if you will allow me to mix fruit into an unappetising salad). By necessary implication the state and the society carrying out the prosecution are exculpated and the judicial system itself is affirmed in its Godlike impartiality and Popelike infallibility.⁶  

Moreover, whether the country is Israel, the US or any “civilised” Western nation, this conception of individual criminality is a goose laying golden exceptionalist eggs. Such proceedings will always affirm the fundamental righteous nature of a society that is not affected by the injustices it perpetrates as a matter of unremitting habit. The message is something like Bernie Sanders’ constant refrain of: Netanyahu bad/Israel good. (The rigorous underlying reasoning is that bad is bad and good is good – which is pretty airtight). All the bad things Israelis do are exceptions, all the good things are the true intrinsic nature of the real Israel. Most readers will have come across this form of apologism being applied to the USA (where many people seem to feel that true America was in the era when President Bartlett was in the White House). It should be plain that singling out individual criminal perpetrators bolsters this ideology.

³ I want to emphasise here that I am not suggesting that the victims of the Jonestown Massacre were responsible for their own deaths. I do not think that people who fall victim to cults like the Peoples Temple are to be blamed for their fate. More broadly, all humans have the roughly same capacities for committing acts of harm and those acts are the products of circumstance. Part of the thesis of this piece is that our attachment to concepts of individual moral and criminal culpability is a self-serving form of moralism that has nothing to do with justice.

⁴ In my limited reading of ICC, ICTR and ICTY judgements they seem to be very keen on the rhetorical trick of asserting the absolute necessity of a given stance. Thus any critic tends to be put in the position of arguing against the underlying principle which is always in itself inarguable. In reality, of course, differing principles can be applied with discretion. Sometimes the principle is empirical objectivity, in others it is wise judiciousness. These are contradictory principles, but who can object to either per se?

⁵ Our knowledgeable and educated superiors have a more profound understanding of the difficulties of bringing charges let alone securing convictions because of the profound legal insights they gained about war crimes from watching Apocalypse Now! and coming to understand the heartrending ambiguities of intentionality in the madhouse of war.

⁶ Judicial impartiality and infallibility is one of those many areas of politics and society where a normative theory is treated as an actuality. As far as my observation goes these slippages always occur in such a way as to assert that the exercise of power is undertaken under a just and/or democratic authority. One might argue that the existence of such legitimating norms pushes society in a more just and democratic direction or, to the contrary, that it conceals unjust and undemocratic practices. I think that either may be true, and that in a declining society such our “Western world” these are hollow norms filled with the rot of injustice and violent privilege.

Criminal Punition vs. Justice 

In case it isn’t obvious I am highly skeptical in general of the redemptive power of the criminal justice system. It is an overwhelmingly negative institution much like aforementioned harmful medical practices of the past that only added to the patients’ ill-health but were held to be necessary because doing nothing was unacceptable. As with economic austerity, there is a false dichotomy (often used in bad faith) between doing the demonstrably harmful thing, in this case mass incarceration, and doing nothing. That said, though, it is also clear that impunity is tantamount to endorsement. Impunity, however, can be viewed outside of the narrow lens of contemporary criminal justice. As things stand, even if the powerful are convicted of crimes they may serve a carceral sentence and still resume their over-sized, over-privileged, over-loud role in society. In social terms this is a more important and problematic form of impunity. I am not saying that there is no point or no hope in trying to apply international law, but there is no constructive role for criminal prosecutions in our current international system.

For that reason I also want to assert that the ICC and the ICJ are not twinned, nor equivalent, nor even complementary institutions. The ICC can only ever be a tool of the oppressor against the oppressed. By the same token those who simply dismiss international law altogether are doing a great disservice to the present and the future. It is a rigged game, but choosing not to play simply gives Western governments carte blanche to commit genocide. Nor is it ethically acceptable to simply play the game as if it is not rigged. That is a form of collaboration and that is what the elite of the human rights establishment are – collaborators in the genocide. The only way forward is to know the game is rigged, to urgently exploit every loophole and ultimately to force the rules to be rewritten by relentlessly and painstakingly exposing every internal contradiction. 

If you want a fast and telling way to distinguish between the nature of the ICJ and the ICC I would suggest contrasting the moment when South African lawyer Adila Hassim fights back tears when discussing the children who have been killed in Gaza with the moment when Karim Khan declared: “Speaking with survivors, I heard how the love within a family, the deepest bonds between a parent and a child, were contorted to inflict unfathomable pain through calculated cruelty and extreme callousness.” In the former case you have someone overcome with emotion while presenting sound well-backed evidence in support of a reasoned argument. In the other you have a prosecutor deliberately evoking personal subjectivity and using emotive language in a tendentious manner. The very fact that the ICC is holding one of these publicity-oriented announcements (akin to those of District Attorneys in the USA) shows what a circus this is. This is a political process.

The Jester’s Court

Indeed, Karim Khan is a politician. After announcing the application for warrants he claimed that a “senior leader” told him: “This court is built for Africa and for thugs like Putin.” That is political talk that does not address the court’s actual record and does not name this clearly fictional senior leader. He is using a rhetorical trick to embed the notions that the ICC is apolitical and that the charges against Netanyahu and Gallant demonstrate the truth of this. He thus avoids exciting the curiosity of the ignorant. If he had said “This charge demonstrates that the ICC is not just a court for Africa and thugs like Putin” it would have raised some people’s interest. It would give a hint that there is a history to be uncovered, and it takes mere minutes to discover that in reality the ICC has a wholly abominable record that only seems to have worsened under Khan.

Khan was the desired choice for the job of ICC prosecutor by the US and Israel. Under his tenure the ICC immediately resumed paused investigations into crimes committed by the Taliban but ended investigations into US crimes in Afghanistan, as well as dropping another investigation into abduction, torture and murder at US black sites in countries such as Poland. Khan’s office has also charged Vladimir Putin with the unlawful transfer of children from Ukraine to Russia. The fact that they did not charge Putin with committing acts of aggression is also intriguing and I will return to that issue later. 

The ICC seeking warrants against Israeli leaders may arguably be “historic” but that is not the same thing as being positive. The very nature of this process has been one in which people’s expectations are used against them. It seems logical that the pressure of truth and activism will cause institutions to move towards justice over time, in conformance with Martin Luther King Jr.’s observation that “The arc of the moral universe is long, but it bends toward justice”.⁷ In the general sense I agree with this sentiment, but on the level of individual institutions it is just not true. The ICC is by nature a giant exercise in subverting justice, and a development may be both “historic” and inimical to progress. No news from them is good news.

There are some notable exceptions to the reflexive celebration of this ICC development. Justin Podur of the Anti-Empire Project (who has previous excoriated the “Imperial Criminal Court”) celebrates only the fact that it may signify the “controlled demolition” of the ICC. Ali Abunimah, on the other hand, found the Khan’s applications to be both “historic and cynical”. The “historic” part, though, is the widely accepted notion that somehow these acts break with past practice and thus move a step closer to ending Israel’s de facto impunity by symbolically repudiating the absolute impunity it has enjoyed at all levels. This is a total misreading of the situation. It falsely assumes that the actions of the ICC are somehow distinct from the apparently inimical reactions of the US, the UK, and Israel. In reality it is all a farcical puppet show. The ICC dragging its feet and agonising for years is a sign that growing pressure is forcing change. The latest move is a way of capturing that pressure, that energy and effort, and subverting it into a project that actually reinforces Israeli impunity.

Many years ago I wrote that the ICC was “Br’er Bibi’s Briar Patch”. I was trying to show that Israel’s histrionic protestations about the ICC were in fact bait to lure people into empowering the ICC to act, fully knowing that it can do nothing to affect Zionist Israel’s occupation and colonisation but can be a powerful tool against Palestinian liberation. It is no coincidence that as the apparition of Palestinian statehood begins to gain substance, the ICC has finally decided to do something, and that something is to file a completely disproportionate lopsided set of indictments. 

⁷ Apparently this was not original to King.

Tilted Scales

Contrary to Karim Khan’s rhetoric, the ICC referrals are in practice massively biased against Palestinian interests. Assuming that warrants were to be issued against all five individuals named by the chief prosecutor there could be terrible repercussions for Palestinians, but there will be nothing for Zionists to fear. This remains true even with two of the prospective defendants dead. On the Israel side of the coin, for example, Benjamin Netanyahu can fly to New York at any time in the future and can address the UNGA telling them that their whole organisation is anti-Semitic and that Karim Khan and the judges of the ICC are all Nazis. Nothing is going to happen to him. The US Congress, with bipartisan support, recently invited him for a record-breaking fourth time to address a joint session of Congress in Washington DC. He lied repeatedly, was applauded once every 5 words and given a standing ovation nearly every 2 minutes of his speech.⁸ It was a display that will hopefully become a shameful lesson on the degeneracy of the terminal stage of the US empire. For now, though, Netanyahu will be able to continue using these platforms to further his propaganda approach of painting all critics of Israel as illegitimate anti-Semites while at the same time making it very clear that he is untouchable.

Lawyer and legal commentator Michael Bradley suggested that even fewer repercussions redound on the named Hamas leaders given that they are already in hiding. He seemed quite unbothered by the repercussions of this, quipping “they already live as shadows and their liberty is only likely to end if and when Israel locates and drops a missile on them.” Firstly, I would like to point out that living “as shadows” is not really liberty. Secondly, it would have meant that a figure like Ismail Haniyeh, who lived openly in Qatar not in the shadows, could have been permanently delegitimised. He was killed by Israel not despite, but because, he was a central and almost irreplaceable part of ceasefire negotiations. If a warrant had been issued against him it might have achieved a similar effect in making it impossible for him to continue as a negotiator. Moreover, there was already US pressure on Qatar to expel Hamas which would dramatically increase their already profound diplomatic isolation.

You may wonder why that matters, but whether we agree with Haniyeh and Hamas or not this act sought to silence a significant voice and peace will be hard to find if we do not listen to all sides. It also obliges the Palestinian Authority to take action to pursue Yahya Sinwar, who is now far more crucial. So the Palestinian Authority will be under pressure to try to hunt down Hamas leaders. Bear in mind that the PA is run by Fatah and even if one believes that Fatah have never had much choice in the matter, they are literally collaborators with the Zionist regime. At the moment this is a moot point, but imagine the damage to the Palestinian cause if the collaborationist regime (woefully unpopular with Palestinians) is obliged to assist in the apprehension of the more popular resistance leaders of Hamas.

It is important to note that these indictments are highly biased against Sinwar, Deif, and especially Haniyeh. The “reasonable” claims against the Hamas leaders seem on the face of matters to strain credulity in most or all respects. In Orwellian fashion Khan states “...if we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse.” A cynic would say that Khan’s masters have most of the world’s weapons and commit most of the world war crimes and crimes against humanity so they might not be entirely unhappy if the collapse of their Imperialist court brings down the general collapse of international law. That cynic would be correct.

The fact is that the ICC charges resistance leaders for crimes committed during a legal act of armed resistance per se. This is all occurring in a context of illegal occupation, a genocide that is widely recognised as such by genocide scholars, and vastly disproportionate casualties from acts by the occupier that are far more susceptible to accusations of criminality. Those circumstances lend a lot of credibility to a senior Hamas official saying that the ICC “equates the victim with the executioner” (the official might have yet more credibility if Hamas were not such enthusiasts for carrying out the death penalty). 

The one charge under which the prosecutors may have firm ground is that of hostage-taking of civilians. That aspect of the Al Aqsa Deluge operation seems inevitably premeditated and is in contravention of so many articles of International Humanitarian Law conventions (including the 1979 International Convention against the Taking of Hostages) that I cannot list them here. Meanwhile, though, there is no talk of charging Israeli officials with hostage-taking even though they clearly take far more hostages. 

I am not going to comment much about claims of sexual violence except to relay Ali Abunimah’s observation that Khan is not pursuing charges over the highly politicised claims of sexual violence on October 7th, but instead charges that there are reasonable grounds to suspect sexual violence carried out against hostages held by militants and that there are also reasonable grounds to suspect criminal culpability on the part of Sinwar, Deif and Haniyeh. This is highly dubious as one would not reasonably expect any evidence connecting these people to such crimes (if they have taken place) until prosecutors have far better access to evidence than they currently have. I believe that this charge is laid in order to further the campaign of using accusations of sexual violence against Palestinians in order to facilitate the genocide in Gaza. 

⁸ It is interesting that many people on social media understand that the display of obsequiousness is a significant story in itself, but despite being so unusual it is not considered so by news outlets.

Controlled Opposition 

In the recent book Deluge, a chapter entitled “Nothing Fails Like Success: Hamas and the Gaza Explosion” by Khaled Hroub reminds readers that Hamas has sought at every turn since 2006 to try to become a “legitimate peace partner”, making overtures to Fatah, Israel and the international community. They had been democratically elected as the government of the Palestinian Territories (as much to their surprise as anyone else’s) and they tried desperately to pivot accordingly, signalling that they would accept a two-state solution. The US and Israel did not want that. They wanted a villain so they made sure they had one. They also wanted to divide the Palestinians politically. Netanyahu facilitated billions of dollars of payments to Hamas to weaken the PA and to convince Israelis that there was no practical “peace partner” with whom they could negotiate.

The PA, led by Fatah, have been no less moulded to serve Zionist purposes than Hamas. By any measure they are a collaborator regime. They have no democratic mandate and a very thin base of support among the people. They are dependent on the enemies of their own people. From an imperialist perspective that makes them perfect. If history books were less circumspect and biased we would all be very familiar with the pattern. Syngman Rhee, a Christian who had not set foot in Korea for decades, was picked by the US to lead the Buddhist majority of Republic of [South] Korea. Soon after the genocidal bloodbath that resulted, the CIA manoeuvred to make Christian and WWII Japanese collaborator Ngo Dinh Diem leader of the Buddhist majority Republic of [South] Vietnam, leading to another genocidal bloodbath. Years later after invading Iraq the US would try to impose Ahmed Chalabi, who had no legitimacy or popular base outside of the DC beltway, as their puppet. They failed, but undaunted the US still managed to sow division and foment an insurrection in order to create another genocidal bloodbath.

Many collaborator regimes in the history of the US empire illustrate the interplay between being in conflict with one’s own population and being a military dependency of the empire. From Colombia, to Egypt, to the Philippines, to post-coup Iran, regimes that are inimical to the interests of their own people (often ironically referred to as “nationalists”) become enslaved to US masters. They might be military dictatorships (usually US-trained officers) or civilian governments who mask a turnkey Junta of officers who will step in if the civilian government strays too far from the designated path. These governments are advised to crack down violently on “terrorists” leading to increasing popular antipathy and (ideally) insurgency. Simply put, the leaders become enmeshed in an enterprise of criminality and conflict that ensures that they need US arms to prevent a popular or guerilla movement from taking over and taking vengeance upon them. This is the role chosen for the PA, for Fatah, and for the PLO. Whatever their numerous flaws and shortcomings, it would be naive and unjust to pretend that they have a lot of choice in this matter.

I have to emphasise here the extraordinary disparity of power between the Palestinian people and Israel acting with the backing of the US empire. The staunch resistance of the people themselves is undeniably effective, but it is impossible for any organised political faction to function as a representative of those people. In reality Palestinians are an impoverished stateless people facing a high-tech society with the 6th largest military in the world and an open-ended ad lib intervention by the US, the most powerful state in human history. Overt organisation can only be done at the sufferance of these powers, and without overt organisation there is no infrastructure. The PA cannot collect its own taxes, even Hamas was propped up financially by Israel, and UNRWA (effectively a third governing body) cannot function if Israel chooses to cut it off. I am not saying that things are hopeless, but we cannot afford to be unrealistic nor shy away from the unpalatable truth of Palestinian dependence on all of us to break the chains that bind them.

What the Palestinians face is not just the hostility of the top Zionist powers (i.e. Israel, the US, and the UK) it is the hostility of virtually every government in the world, including those who profess to support the Palestinian cause. Not only that, virtually every NGO in the world is also biased against Palestinians, even if they are vocal in condemning Israel’s crimes. I say that because very few pass up any opportunity to condemn armed Palestinians militants and Hamas in order to show that they are even-handed. In terms of political discourse the problems with this approach are manifold. The ideology of context-blind “even-handed” treatments of the oppressor and the oppressed is far too profound and pervasive for me to deal with here other than to say that it is essential in keeping alive Israel apologism when the world can see its inexcusable atrocities laid bare. More specifically, though, the delegitimisation of Hamas serves to ensure that no effective resistance will ever be accepted and that Palestinians will remain trapped between collaborator factions who help Israel commit a slow genocide of creeping annexation, and “terrorist” factions whose existence provides the pretext for Israel to accelerate the genocide with acts of mass slaughter.

Prosecuting the Victims

It is valid and legitimate to disagree with the violent acts of militants on October 7th but it is not legitimate to condemn the factions themselves nor their cause. It was wrong to condemn slavery abolitionists and suffragettes when atrocities were committed in their cause. It was wrong to condemn the “terrorist” African National Congress when their armed wing killed civilians. More to the point, it was wrong of the Germans in World War II to condemn partisan “terrorists” fighting it’s occupation. In fact, after the War it was long taken for granted that no crimes committed by resistance forces (no matter how grave and atrocious) would be prosecuted. To the best of my knowledge this was an inviolable unwritten rule until 2006 when Lithuania first sought to prosecute partisans, including Jewish partisans, for “genocide” among other crimes. It is a joke, but not a funny one – much like charging Palestinian resistance leaders in the midst of the daily slaughter of the genocide in Gaza.

Historian Benny Morris recently stated that while Israel may commit war crimes in its Gaza operations, Hamas’s October 7th attack was itself a war crime. Mehdi Hasan rather unforgivably let this pass unchallenged, but it is a complete inversion of the truth. Hamas committed war crimes during a legal act of armed resistance, Israel’s response is in all respects criminal by nature. The occupier does not have a right to use arms in self-defence against the occupied. Armed Palestinian factions have a clear legal right to use armed force to resist occupation and it is not legitimate to treat those crimes that occur during armed resistance as if equal in gravity to acts of armed violence that are illegal as such. By this I refer to acts of aggression and genocide. In these cases atrocities are not extrinsic to the purpose of the armed violence, they are of its essence.  Genocide in particular, even when not aimed at total extermination or expulsion, aims its violence at the target population as such, rather than at armed forces. In genocide the means and ends of the perpetrator are the same thing – to bring harm and destruction to the target group. A group like Hamas may commit atrocities in pursuit of its aims, but in the Gaza holocaust Israel's atrocities are the aim. 

In any true “rules-based international order” Hamas would have been recognised internationally once it was elected and, as long as the occupation continues, it should have retained recognition as a legitimate political party regardless of any actions by its personnel. Instead, in topsy-turvy fashion, we accord that treatment to Israel’s political parties when the entire regime is fully committed to occupation, apartheid, annexation and genocide. At the same time the progressive countries in the international community show their support for Palestine by treating Fatah-controlled PA as the legitimate government. 

The PA’s international legitimacy has become a fait accompli, but it is still horribly problematic while it has no democratic mandate. President Mahmoud Abbas dissolved the Hamas-led parliament in 2007 and declared a state of emergency and there have been no elections since. Polls show that  Fatah enjoys little democratic support. The more jealously they guard their prerogatives as the one legitimate representative of the Palestinian people, the less moral and domestic legitimacy they have. Recently Hamas, Fatah and twelve other Palestinian factions signed a unity agreement but it is going to be hard to implement if there isn’t a wide international acceptance of the legitimacy of groups like Hamas that engage in armed resistance. Failing this there will predictably be a withholding of funds, aid, recognition, diplomatic ties and more until any resultant governing body cuts loose those factions deemed unacceptable, leaving the Palestinian people divided and weak.

Multiple countries recognising and supporting the PA may seem like a step forward, and is in some ways, but as the party controlling the PA has become more unpopular and more collaborationist and increasingly perceived as corrupt, the logic becomes akin to ostentatiously supporting the collaborator Quisling regime to show that you don’t like the Nazi occupation of Norway (while agreeing with Germany that the government-in-exile supports terror and needs to be sanctioned). To be very clear, I am not claiming a moral equivalence between Quisling and Abbas, but I am claiming that level of moral and intellectual bankruptcy among the international community.

So the ICC charges occur in the context of a political division among Palestinians crafted by Israel, the US and the UK to weaken and dominate the people while compromising their leaders. In this system the PA is trapped by its pursuit of international legitimacy, because that seems like a pathway to Palestinian liberation. If international public opinion is incorporated, the international arena is the only area in which progress seems to be happening towards an end of the agony of the Palestinian people. The problem with that is that they then become beholden and reliant on the governments of the UN nations, and in case anyone has failed to notice during this holocaust, but those governments are all run by scumbags and idiots. These leadershippers are stampeded into action by 40 fictional beheaded babies, and waste inconceivable amounts breath agonising, pontificating and condemning non-existent sexual violence by Palestinians, but they are measured to the point of indolence over thousands of real Palestinian babies being killed and totally uninterested in decades of documented instances of sexual violence and sexual torture of Palestinians abducted by Israel. We live in a world where it is easy to get fired for condemning genocide, but supporting genocide is a canny career move. International legitimacy is another poisoned chalice and that is not going to change until the ruling class start to fear the backlash they face from their own people. Until then the PA, and through them the Palestinian people, are at the mercy of an international misleadership class that can and will sabotage all efforts that challenge the slow genocide.

Not Serious People 

For the record, doing a press conference looking like a panel of proctologists convened to deliver a prognosis of someone with Stage-4 terminal haemorrhoids is not actually a sign of seriousness.

One of the problems with the ICC charges is that, as we have seen, they are taken very seriously by the officials of the world. The ICC should not be taken seriously as they have a very long history of proving themselves unserious. The ICC is a Europe-based mostly Europe-funded court. Europe has a relationship with African that is extractive, parasitical, and neocolonial in nature. African wealth flows very freely to European elites, and various forms of intervention are required to maintain that flow, often by ensuring the corruption of African leaders. Arguably the ICC functions to intervene in just such a manner. All ICC trials and all detained defendants have been African. For example, Jean-Pierre Bemba Gombo was arrested in 2008. He had fled the Democratic Republic of Congo after multiple attempts on his life. He was charged with being responsible for atrocities committed by the MLC militia he sent into the Central African Republic at the request of the CAR government to help quell a coup. The Supreme Court of the CAR found no grounds to lay charges against Bemba or, as the ICC prosecutor saw the matter, there was a “perceived inability of the system to gather evidence....” 

Bemba was in custody for well over two years before his trial even started, and it then took four years before he was convicted. It then took another two years before he was sentenced and thus a further two before his appeal was heard and his convictions overturned. Ten years of incredible expense and a man imprisoned for crimes that, quite predictably, could not be sufficiently proven. I would imagine that the four year trial was devoted to harrowing testimony and complex legal arguments and had very little relating materially to Bemba’s personal culpability. The whole saga, complete with witness tampering on both sides, was a parade of politicisation, corruption and ineptitude that should have seen the ICC’s doors shuttered then and there.

Now, once again, the ICC is pursuing charges against leaders of a non-state armed faction despite the obvious fact that they will never be able to prove the personal culpability of those charged in a fair trial. I don’t support the charges against Netanyahu and Gallant either because they are tokenistic distractions from the criminal guilt of the state of Israel, but at least it is theoretically believable that a criminal case could be built against them. In charging Sinwar, Deif and Haniyeh the ICC is doing what it really seems to have been designed for – attacking those inconvenient to Western imperialists and forcing their compatriots to turn on them. It is a divide and rule tactic, among other things. Worse still, it is a precedent. The ICC can repeat this process of both-sidesing any future Israeli pogrom⁹ so that any resistance leader can be taken out of the equation by similar allegations.

The charges against Hamas leaders will be a whip for the backs of the PA, Palestinian civil society, and the Palestinian people. Hopefully none will choose to collaborate in furtherance of these charges, because whether they do or do not their real or imagined unwillingness to comply will be used to delegitimise them. It is likely (if the past is anything to go by) that these charges will be exploited to accuse Palestinians of non-compliance. Once that is mooted all of the professionals (who in their hearts may know that there is no commensurability between Israeli and Palestinian crimes) will trip over themselves to be the first to go on camera to show their even-handed credibility by condemning Palestinians like the pampered poodles that they are. 

For decades an international humanitarian reporting and condemning machine has sought again and again to create space for criticising Israel by showing its willingness to criticise Palestinians. To do so they have had to be wildly disproportionate in terms of gravity and scale so as to deliberately create a spurious sense of parity, because apparently that is needed to show that they take the crimes of both sides seriously. They do so with no regard for the politics of power that they are responding to. They have to assuage the political realities on one hand, but on the other they loudly avow that they cannot allow considerations of the political ramifications of their politically motivated bias to sway them away from “impartiality”. This isn’t justice being blind it is justice being blind-drunk and wilfully bigoted. To add insult, this is all enacted with the utmost unbearable pomposity.

⁹ By “pogrom” I of course mean “security operation” undertaken because of “Israel’s right to defend itself”

Fake Justice, No Peace

The reader may have noticed a smidgen of contempt on my part for the champions of “justice” who seek to preserve human rights through the salutary prosecution of criminal malefactors. I have compared the way people think about the prosecution of criminals to mediaeval superstition, but really it is much deeper than that. It is a set of ingrained assumptions concreted in place by a very personal sense of ideology. It is religion. People find their purpose in it and they are not inclined to listen to those who would trash their vocation and sense of moral identity with mere facts and reason. 

The holier-than-thou antics of the “genocide prevention” professionals, for example, are particularly galling. Every major US military intervention since 1950 has been genocidal in nature and it has supported genocides in East Pakistan (now Bangladesh), East Timor, West Papua, Western Sahara, Guatemala, Argentina and other places. The US has directly or indirectly been a culpable party to most of the deaths that have occurred from acts of genocide since World War II. I would say at least two-thirds of genocidal violence since WWII has been attributable to the US or its clients. That does not even account for structural genocide. Structural genocide is what it sounds like – structural violence that is genocidal in nature. Structural violence used with the intent of undermining a people or nation’s wellbeing and development in order to subjugate that people or nation and/or gain economic access to resources in neocolonial fashion is genocidal by nature. The USA has used military intervention, sponsored coups, covert action, propaganda, economic pressure and diplomatic pressure to enforce  “Washington Consensus” rules of neoliberal economics that are linked to tens of millions of deaths through malnutrition and preventable disease. 

The United States of America is easily the most genocidal state currently in existence, and by some measures is the most genocidal regime in human history (with the obvious caveat that Germany and Japan committed genocidal violence at a far higher rate during WWII). The entire international apparatus of “genocide prevention” has arisen in this context, but all it has done until recently is to make it easily for the greatest perpetrator of genocide to commit further genocide. This is not merely by whitewashing the genocidal superpower, but also by turning accusations of genocide into a political tool for demonising enemies of the genocidal empire. 

The entire discourse of “genocide prevention” has wilfully ignored the genocidal empire and, I would argue, the inherently collective guilt that is intrinsic to genocide. It has focused on the demonic criminal figure. A key text is Samantha Power’s A Problem from Hell which quite deliberately evokes demonic evil in its very title. For anyone who has looked beyond the sanitised and grossly understated (in both numerical and qualitative terms) Western accounts US interventions it is a stomach-churning book to read. It frames the US as being too unresponsive to genocides. Some people believed that in receiving a prize from Henry Kissinger she had moved away from her human rights background when she used to criticise him, but some criticisms are so weak and minimising that they are obvious apologetics. Her critique of Kissinger over Cambodia/Kampuchea, for example, is that he had no credibility to criticise the “genocide”¹⁰ there because he “had bloodied Cambodia and blackened his own reputation.” In reality Kissinger may have slaughtered as many Cambodians as Pol Pot did.¹¹ Moreover, the Khmer Rouge would never have taken the country if not for the calculatedly genocidal nature of the violence and displacement created at Kissinger’s behest.¹²

Power’s central thesis that the US needs to intervene more is frankly nauseating and the idea that she ever cared deeply about human rights seems highly unlikely. Humanitarian interventionists like Power, Clinton, Susan Rice, Nossel, Albright and so forth are simply neocons gendered as being female. If you think that is an exaggeration, please tell me what actual difference there is between the politics of leading neocon Robert Kagan and his humanitarian interventionist wife Victoria Nuland. The policies and ideology in international relations of humanitarian interventionists and neocons are identical – and foreign policy is what they really care about. They are imperialists first and foremost.  Writer David Rieff once even said to Power that her rhetoric on Libya was like that of neocon rhetoric about Iraq: “She said, jokingly, ‘I am not Paul Wolfowitz,' and I said, ‘Yeah, actually, I think you are,'”¹³

Whether the rhetoric is of the “indispensable nation” or the “responsibility to protect”, supporters of either slogan are simply creating pretexts for imperialist violence. Fortunately for these would-be overlords, the world’s population of politicians, journalists and academics boast no small portion of idiots in their number. They are happy to accept that those who napalm villages in Indochina, train death squads in El Salvador, back mass slaughter in Indonesia, torture people to death in Bagram,...¹⁴ ...are somehow moved by the highest sentiments to sacrifice national blood-and-treasure to make the world a better place. That is a key tenet of imperial apologetics, but that is far from the only problematic aspect of humanitarian interventionist discourse such as one finds in Power’s A Problem from Hell. It also replicates the politics of demonisation that is central to the art of modern warmongery.¹⁵

¹⁰ In a legal sense the Khmer Rouge regime in Kampuchea cannot be accused of genocide. Their victims were predominantly Khmers. Minorities such as Cham people were no more at risk of death than the majority (ethnic Vietnamese had already fled the country under the persecutions of the previous US client regime). The word “autogenocide” was coined, retrofitting the concept of genocide to suit the emotive politics of the term rather than the law and its original conception. Admittedly the behaviours and ideology of the Khmer Rouge regime intersect with genocidal behaviours and ideology, but so do political and religious persecutions in other non-genocidal contexts. Power’s choice to include the DK autogenocide in a book about genocide has nothing to do with any rigour, and everything to do with the Hollywood disseminated personalisation of the violence. The “killing fields”  resonate still, albeit mostly with boomers who remember the film of that name and its not-quite-white-saviour narrative.

¹¹ As anyone who has read Manufacturing Consent already knows the fatality counts for the autogenocide are a very contested and political topic. What is generally missing is an account of how many died in Kissinger’s war on Cambodia. A Finnish inquiry report estimated that 600,000 died in the US carpet bombing and subsequent starvation and a similar amount under the Khmer Rouge autogenocide. Recent scholarship has suggested that more died at KR hands, but this is still a highly politicised issue despite fading in the public mind. The point stands that Kissinger, who murdered people in many places other than Cambodia, is no less condemnable than Pol Pot.

¹² Even more overtly than in Viet Nam, the US did not make much of a pretence of trying to win the “war” they waged in Cambodia. Kissinger waged a campaign of complete destruction and deliberately driving the people from farmlands creating a famine among 2 million refugees in who fled to Phnom Penh. He ordered the USAF to use “anything that flies on anything that moves”. Before even beginning the war Kissinger briefed the ground operations head Col. “Fred” Ladd, telling him, “Don't even think of victory; just keep it alive.”

¹³ People like Victoria Nuland and Robert Kagan kind of give the game away. Neoconservatism isn’t really about keeping women in their place and defending patriarchal masculinity. Going right back to Leo Strauss, neoconservatives have viewed traditionalism as a means not an end, and the current crop views culture wars in the same way, being happily able to play both sides of the issue. Often the side these imperialists take in the culture wars is just a reflection of their gender, their general vibe, and/or their equally arbitrary detail of whether they chose the Democratic or Republican Party as vehicles for their political ambitions.

¹⁴ ....facilitate apartheid in South Africa and Palestine; enjoy warm relations with despots in many repressive regimes such as the monarchy in Saudi Arabia and any number of military dictatorships; teach torture techniques to brutal client regimes such as the Shah’s Iran and Guatemala during its genocide; overthrow sovereign governments in Iran, Iraq, Gautemala, Syria, Chile, Grenada, Indonesia, Viet Nam, Cambodia, Laos, Haiti, the Dominican Republic and many more; back genocide in places like Iraqi Kurdistan, East Timor and Bangladesh; and many other crimes....

¹⁵ Or is it more of a craft?

Real Bad Hombres

Power’s A Problem From Hell frames mass atrocities as products of demonic individuals, not by making an argument that that is the case but by emotive appeal to existing prejudices. This suits the religion of criminal justice mentioned above, but also serves to help the very powerful commit the crimes they condemn in those weaker than they. The belief in the rectifying powers of criminal prosecutions originated in overt religion, evolved to become a tool of social domination through class and/or racial hierarchy, and is now fed like soma directly into the brains of the unwitting through the medium of copaganda shows and their prosecutorial spin-offs. The ideology of genocide prevention through deterrence is woefully weak for lack of evidence and reasoning, but I think that even that lame and vacuous justification hides an even emptier reality. People want to get the bad guy and lock them up because when something bad has happened they want closure – a self-inflicted “need” that afflicts the privileged. They want resolution. They want the credits to roll because their life experience is that injustice is a temporary departure from a norm of the world treating them fairly. The way they act, therefore, is not dissimilar to the behaviour that one would expect if convicting a murderer actually brought their victims back from death. 

Some people also view retribution as desirable, either because they think that malefactors should suffer or they have a belief in reciprocity and/or “accountability”. These are all personal and ideological beliefs. I won’t spend the time making a long argument against the applicability of these intangible desires in any true form of justice. Instead I will note that instances of war crimes and crimes against humanity may have hundreds, thousands, or hundreds of thousands of lives at stake. What matters here is not crime, it is human existence and human suffering. There are real instances when the choice of indulging the desire to “see justice served” may come at the cost of peace. If we set slogans and cliches aside, losing peace means deaths, grief, suffering, fear and trauma. In these circumstances it is completely reprehensible to elevate these abstracts at the expense of real people. 

It is understandable if survivors and those bereaved by such crimes want whatever solace can be provided by knowing that someone responsible has been judged and punished, however inadequate that punishment must inevitably feel. However, those who take up the cause of those victims with passion and pathos are nothing but posers. None of them seem to have the same righteous determination when it comes to US presidents, whose victims invariably outnumber those of all ICC defendants, often by multiple orders of magnitude. 

Notwithstanding that a form of psychological peace might be purchased for some victims, it should never be obtained at the cost of actual peace and the creation of more victims. In its current form “international criminal justice” is a political tool of the greatest criminals and they have no concern if they create a massive disincentive to those who might make peace or relinquish power. After all, why would a warlord ever agree to lay down arms and step aside from power if they knew that only the guns and the power stood between them and ritual humiliation and a life in a foreign prison where they will die without ever seeing their loved ones again? Charles Taylor, former President of Liberia, voluntarily relinquished power and went into exile under an agreement providing immunity. It is argued that he broke the conditions of his immunity, which may well be true, but his fate is likely to deter others from making peace far more than it deters them from committing war crimes.

The Charles Taylor Case

For some what happened to Charles Taylor might act as a deterrent to future would-be warlords, but that is hard to believe. The deterrence value of judicial punishments has never been as strongly evidenced as believers in general deterrence would like. Moreover, data suggest that of the three parameters thought to affect deterrence, certainty and celerity (swiftness) are highly important while severity is less so. International courts, ad hoc or otherwise, have demonstrated very clearly that they cannot provide certainty or celerity. Taylor’s trial, for instance, lasted 5 years. Theories of general deterrence also rely on rational choice theory, which has many limitations and caveats. A burglar might weigh risks, but many crimes do not accord well with rational choice theory. A rational person in charge of armed forces is very likely to conclude that the success or failure of their forces is infinitely more important than a possible criminal conviction in the hazily distant future.

Charles Taylor was a big fish for lovers of “international justice”. The Sierra Leone Civil War in which he intervened was a source of “blood diamonds”, and Taylor himself was the inspiration for warlord André Baptiste in the film Lord of War. He was literally a Hollywood villain. His victims arguably number in the thousands. Yet, as Taylor’s trial started the numbers of dead from the illegal invasion and occupation of Iraq already stood at many hundreds of thousands and would surpass a million before his conviction.¹⁶ The people who died in Iraq suffered as much, were mourned as much, deserved to live as much as those who died in Sierra Leone and their numbers weigh far more heavily. The complete historic absence of any institutional moves to hold George W. Bush and others criminally accountable for those deaths confirms beyond reasonable doubt that international criminal proceedings have everything to do with power and may at best be considered incidentally involved with justice. 

The clear lesson of the 30 year-long tradition of international criminal proceedings that began with the ICTY is that security comes from power. Far from providing deterrence for committing crimes, these proceedings incentivise any action, including criminal violence, that preserves the political and military power of any prospective defendant. 

There is also more of a cloud hanging over the conviction of Charles Taylor than one might believe from perusing the internet. It is well-suppressed and hidden in the interwebs, but if you know where to look you will find that one of the judges on the case, Justice El Hadji Malick Sow, thought Taylor should have “walked free”. It is well worth reading this interview with him, but I will try to summarise. Sow was an alternate judge on the case, but was there throughout. He acted as main judge whenever one of the others was absent. He seems to imply that he was more diligent than the other judges. He argues that he was supposed to become a main judge once one of the other judges began serving on the ICJ. He wrote a dissent and action was taken against him for doing so. His account is entirely consistent with that of someone not playing along with a politically determined process. 

The problem with the Taylor case seems reminiscent of that of the Bemba case in that one cannot realistically expect a distant leader to create enough evidence to convict them of crimes committed by armed forces far removed from their presence. A criminal court seems utterly inappropriate for these cases as convictions are only likely to come in most instances through subversion of the judicial processes. In addition I think one could rightly ask whether the length of these trials actually works against clarity. 

¹⁶ I do not want to revisit the controversies of the mortality estimates here, but the critiques of the Lancet and ORB studies of mortality have not withstood scrutiny, at least in regards to the overall conclusions. The overall rise in mortality (from a pre-invasion baseline that was already elevated due to deadly sanctions) speaks for itself. The second Lancet (L2) study only confirms this but shows that most of the dead were lost to violence, with small arms fire from occupying forces being the number 1 known cause of death. If you want to read more I summarised the issues in section 1 of this article.

Waging a War of Aggression

There is one international crime that is far easier to prove, or would be if anyone actually prosecuted it. It is a crime undertaken by leaders directly, not one that requires proof of intentionality or wilfulness on a given leader’s part for actions taken by subordinates. That is the crime of waging a war of aggression. In 1946 the judgement of the International Military Tribunal at Nuremburg stated “To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” The Nuremburg Principles and the UN Charter are completely consistent with this idea. When the UNGA approved a definition of aggression in 1974 the Resolution affirmed that “aggression is the most serious and dangerous form of the illegal use of force....” 

Reading the definition of aggression it is pretty hard to see how US leaders would defend against such accusations in innumerable instances. With major aggressions such as Indochina, Afghanistan, Iraq and Libya the US has constructed circumstances whereby it can claim a legal defence of acting at the invitation of local authorities or under the authorisation of the UNSC. I don’t think that these defences would mean much in court as their pretextual nature is pretty easily established. These excuses are merely propaganda points used to explain US impunity, and they provide the pretext for prosecutorial inaction as much as for acts of aggression. 

In cases where the US commits acts of aggression on a smaller scale it is hard to see any legal reason why their leaders were not prosecuted. For example, in 1989 the US invaded Panama in “Operation Just Cause”.¹⁷ They killed around 4000 people, and there is no defence for their actions in international law. The UN definition of aggression is broad enough that the US has literally dozens of cases to answer for. All US Presidents and many cabinet members seem eminently indictable. 

The international criminal justice industry has been very coy about the whole issue of waging a war of aggression. Originally the Rome Statute did not even include aggression among its enumerated international crimes. Now the statute addresses what one scholar refers to as “mere acts of aggression”. The cute trick here is to take the acts which were established from 1946 to 1974 as being a constitutive of waging a war of aggression and turn them from the acts of an entity committing the “supreme international crime” into an entirely new lesser form of crime. The customary International Humanitarian Law is perfectly clear, but it is equally clear that while invading other people’s countries is definitely frowned upon by the ICC, they aren’t going to suggest that the US is guilty of anything beyond an occasional legal peccadillo (or a tragic and clearly unintended miscalculation if the fatalities rise to six figures). 

4000 dead people is merely a micro-aggression. Equally having forces in Syria attacking the government of the country for ten years (after initially justifying their intervention as being aimed at ISIS) isn’t even newsworthy enough to warrant creating an excuse. After all, if you are going to treat each act of aggression as a literal act of aggression it would make running a massive interventionist military empire that kills foreign nationals every hour of every day into some sort of criminal enterprise. That sort of thinking leads to consequences that cannot be entertained by serious figures on the world stage.

The beauty of doublethink is that you feel no cognitive dissonance. There is no part of the individual or collective consciousness that says, “hey, wait a second....” As such it should surprise no reader that there is a massive exception to the refusal to entertain the possibility of treating the crime of waging a war of aggression as an actual crime. Can you guess the exception? It is not an African exception this time, perhaps because the powers that be really don’t want to draw any more attention to Paul Kagame than that which he is quietly accumulating at the moment.¹⁸ In this case the exception is unsurprisingly made for Russia and Putin. There is a proposal to institute a special tribunal to prosecute the Russian crime of aggression. Remember how the ICC was supposed to inaugurate an end to the vagaries of ad hoc tribunals? You might, but the people behind this are more loyal to the present moment because they don’t betray today with reference to yesterday and the impurities of context. The tribunal is supported by NATO and a bunch of EU institutions. In the end, though, it is so on-the-nose that, despite not being known for subtlety in double-standards, I think that even the Western chauvinists referred to as “the international community” may resile from such obvious rank hypocrisy.

¹⁷ Note the potential double meaning if this is called “Operation Just ‘Cause”. I believe that this stems from the same sort of nerd machismo that led neocons to initially label the plan to invade Iraq “Operation Iraqi Liberation”. These are serious deadly events, but we should not forget that those behind these events may be disgusting annoying little shit-stains who wrongly think themselves witty.

¹⁸ He has reached the point where the US client figure starts to blame the US in order to garner nationalistic appeal. Afficionados of Cold War history will know that this is often close to the terminal stage in the puppet life-cycle.

Jus in Bello, Jus ad Bellum

As well as atomising and diminishing the “supreme international crime” as “mere acts of aggression”, the ICC is part of a broader politicised juridical tendency to abandon, obfuscate and mystify questions of the legality of a given conflict and instead focus attention on the legality of actions within the war. This neatly allows the most powerful states to deploy the age-old propaganda weapon of civilisation versus barbarism. As we all know (in our guts) acts of brutality are carried out by barbarians, therefore the war crimes of this sort are the province of illiterate former child-soldiers with poor socialisation and a surfeit of melanin. 

Crimes carried out within war are the province of “jus in bello” or legality/justice during war. The origin and nature of the conflict itself is the province of “jus ad bellum” which addresses the legality of the war itself. Jus in bello concerns play into the Western propaganda and the politicisation of the justice system to effectively blame and punish the victims of aggression. As we have seen already with the case of the ICC regarding UK war crimes in Iraq, this form of criminal justice is even more easily corrupted by money than normal criminal law. Further, as I will illustrate below, the right which powerful countries can exert to prosecute their own personnel (which stems from their own aggression) leads to obvious and abominable perversions of justice. War criminals are never really punished by the US and Israel, and are often made heroes if they face any form of judicial or disciplinary action. As I write Israel has just seen armed rioters (with parliamentarians and government ministers in their number) rioting in support of soldiers charged with torturing a prisoner with gang rape leaving internal injuries.

The erasure of jus ad bellum from the conversation is part of a larger war against context. As we have seen, at the end of World War II it was not the practice to prosecute those who had fought against the aggressors. I think that it would have caused enormous unrest. Is that right or wrong? Is it victor’s justice? There is no question that people did horrible criminal things while fighting against the Axis powers. Obviously history will never entirely replicate those circumstances, but it is worth thinking about why Allied and partisan/resistance personnel were not usually charged by any post-War jurisdiction for war crimes. Firstly, although there were plenty of military tribunals as well as the more famous international proceedings, it was always going to be the case that criminal cases were going to only represent a token percentage of indictable people after an orgy of murder of that scale. How would it have appeared to the public if, say, a resistance fighter were charged with torture and murder while major war criminals were happily working designing US missiles (replacing the many US rocket scientists purged for leftist sentiments with more ideologically sound Nazis); or hunting down communists in Eastern Europe, or developing bacteriological weapons to use against Chinese (allegedly); or teaching torture techniques to secret police in Bolivia. For these people the Nazi war against the tentacles of the “Judeo-Bolshevist menace” never ended¹⁹ and it may have caused more than raised eyebrows if they were rewarded while those who fought against fascism were prosecuted.

¹⁹ For rocket scientists who ended up on the other side of the Iron Curtain it may have felt like the war against the tentacles of the “Judeo-Capitalist menace” never ended.

The War against Context

The emphasis on jus in bello criminality is a crucial part of that most precious resource of imperialists – selective memory. Imperial violence in general, and the 100-year conflict against Palestinians in particular, require the continued and determined refusal to give a full context to events. The obvious exemplar of this bad faith behaviour is the manner in which the events of October 7 2023 have been treated as if there was no prior history of violence against Palestinians before that date, let alone that there had been a preceding escalation of violence on Israel’s part. 

It is hard to overstate the importance of creating an official truth and an orthodox historiography that can be used to cudgel dissenting voices. The emphasis on discrete criminal acts during conflict is part of a multi-pronged system producing official findings that have a level of internal consistency. The discourse is a thick-skinned organism which bristles with antibodies ready to expel unwanted facts and reality-based quibbles. 

The bureaucratic world is like the journalistic world in that it abhors reason and original thought as being subjective and suspect. Official truth is handed down from on high and bears the stamp of authority. The individual must “reject the evidence of their eyes and ears” as Orwell put it. Who are we mere humans, after all, to form opinions let alone make inferences? Truth comes from mechanistic processes that are objective. If blobs on satellite pictures are said to be the execution grounds or torture chambers or mobile chemical weapons facilities of an enemy it is because “analysis” says so, not a person. 

It is manifestly unjust to treat the crimes of an impoverished militarily weak armed group enacting legal resistance as being commensurable with the crimes of an advanced occupying power with sophisticated policy, rules of engagement, and communications capabilities. For example, the “Goldstone Report” on the violence “Operation Cast Lead” in 2008-9 was headed by a Zionist (chosen to give the report “credibility”²⁰) who insisted that its mandate include investigating the crimes of Palestinian militants even though it originated as a reaction to Israel’s prolific violence against civilians in Gaza. The report devoted a considerable chunk of its verbiage to Palestinian crimes which, if weighted by the actual injuries and fatalities (3) they caused, would have been relegated to a paragraph or two. The victims are thus held to a higher standard than the aggressors. Indeed, when Israel kills 3 Palestinian civilians there is never any such close examination of their level of discrimination. Moreover, and more pertinently, by avoiding the jus ad bellum aspect as being outside of their purview (or seemingly that of any mere mortal) they avoid the obvious question: to wit, if Palestinians have the right to armed resistance to occupation and the right to armed self-defence, is it possible to declare their use of the inherently indiscriminate rockets illegal when those rockets are their only significant means of striking Israeli territory? It is all a monstrous sham, but the politics of being able to suggest a parity of illegality between the two parties has been absolutely crucial in blunting and silencing criticisms of Israel and in confusing the public who have no idea that the asserted “crimes” of Gaza-based militias were both miniscule and highly dubious before October 7 2023.

An even more blatant example of the corruption of justice that arises from the decontextualisation of Israeli crimes is the “Palmer Report”. Lead author Geoffrey Palmer (sadly not the actor from The Fall and Rise of Reginald Perrin, but the former Labour Prime Minister of Aotearoa) is widely seen as genteel, genial and honourable. He certainly seems to see himself that way, but on the strength of the Palmer Report I can confidently say that he is better described as a self-satisfied fuckwit. The Palmer Report ruled the Israeli blockade to be legal on the basis that it would not consider whether or not Israel had a right to be taking military action against Gaza (such as blockading it). On the presumption that it was legal to blockade Gaza they found that it was legal to blockade Gaza. Hence my use of the word “fuckwit” as the only appropriate word in my vocabulary. If that seems offensive, just think of the contribution that the Palmer Report made to muddying the waters and furthering the Zionist claims that Israel is not occupying Gaza. Palmer has untold Palestinian blood on his hands but clearly believes his life to have been one of service and philanthropy. What a cunt.²¹

²⁰ A pointless exercise as Zionists, in tellingly fascistic fashion, increasingly explain all unwelcome comments as being the product of a hostile and tainted individual. Richard Goldstone proved to be no exception.

²¹ Okay, there are two words in my vocabulary that seem to fit Palmer.

The Miracle of Compound Interest

The exclusive focus on jus in bello crimes also facilitates this notion, which I have already touched on repeatedly, that the right people to deal with any alleged crimes are the perpetrators. When aggressors prosecute their own personnel they try to extend impunity as much as possible, but when forced to prosecute will engage in something worse than a failure to act – a different form of show trial where the accused is made into a nationalist martyr, even a hero. We have now seen two riots in Israel over attempts to charge IDF personnel for acts amounting to rape and torture (though I doubt the eventual charges will reflect the gravity of the acts).

The system of prosecuting one’s own war crimes, like many such processes, goes through stages and where it begins may bear little resemblance to where it ends. It is the inverse of the way criminal justice works for the underprivileged. Consider the case of a working-class Māori in Aotearoa. From birth they are more monitored by state institutions, often in the name of “welfare”. At school they are subject to individual and collective prejudices. In the community they are subject to greater levels of police surveillance. All of this adds up to a much higher likelihood that any prosecutable behaviour will be detected. Studies show that once detected such behaviour is more likely to be charged than with other ethnic groups and that charges are, on average, more serious than those laid for identical behaviour by individuals of other ethnic groups. The Māori individual is more likely to be convicted than peers of other ethnicities and will attract on average a more severe sentence. This is the miracle of compound interest at work, with compounding inequity building and building to the point where 15% of the general population constitute 50% of prison population.

The miracle of compound interest works in the same manner for the privileged, but inverted. Crimes of the privileged (such as drug crimes) often attract no attention from the state at all. The same is true of war crimes. Consider US war crimes in Viet Nam. The Russell Tribunal (the most significant impartial body to consider these issues) found the US guilty of all counts that it considered – including genocide and waging a war of aggression. This means that every single death in the war at US hands, of which there were millions, was a war crime. In considering criminality, though, the US inverted the gravity and lethality of types of armed violence so as to only prosecute those at lower ranks who commit murders with small arms while ignoring the larger mass murders committed with air or ground artillery and largely ignoring those committed from vehicles such as boats and helicopters. Officers who order villages incinerated from the sky need fear no repercussions. The mass graves of the Hue massacre are held up by US supporters as the prime exemplar of a Communist massacre in the South, but we now understand that only 10-30% of the bodies found were killed by PLAF/PAVN forces that occupied the city, while 70-90% were killed by the intense shelling the US leashed on the urban area. Those victims were just as entitled to live but no one seems to want justice for them. 

In late 1968 the US 9th Army Division began a murderous campaign in the Mekong Delta called Operation Speedy Express featuring indiscriminate mass firepower (particularly from boats and helicopters). A whistle-blower described it as “a My Lai each month”, but he understated the rate of death as even the US Army estimated conservatively that 5000-7000 civilians were killed in the 5 month operation. The easily identified driving-force behind the death toll was Gen. Julian Ewell. German Generals were hanged by the US military for this crime and Japanese Generals for far less, but Ewell never had any need to fear prosecution.

Individuals of lower ranks who took matters into their own hands were the most likely to face any charges, particularly if they killed alone rather than in units. Grotesquely the US would never charge any crimes as actual war crimes because they were carried out against “friendlies”. These were criminal acts against a putatively allied civilian population. A typical example was PFC Charles Keenan. Convicted of murdering an elderly man and woman he was sentenced to life. After intercession by his local congressional representative (who thought it “impossible that a marine could be charged with premeditated murder while on patrol under orders”) his sentence was reduced to 25 years, then one of the charges was overturned and sentence was reduced to 5 years, then he got clemency and his sentence was reduced to 2 years and 9 months. 

The most famous such prosecution was that of 2nd Lt. William Calley who murdered at least 22 people during the My Lai massacre and tried to kill many more. Hundreds of people were killed in that massacre but only one person, an officer of the lowest rank, was ever convicted. Another officer, Captain Ernest Medina, was charged and acquitted, but no one higher up was prosecuted despite these junior officers having been explicitly instructed to “kill anything that moves”.  Calley was sentenced to life, but would that be particularly satisfying to the people of My Lai given that most of their dead were murdered by other people who faced no charges? While the verdict can have provided little satisfaction, closure, nor effective deterrence against future crimes, it did fuel a backlash. Leaders across the political spectrum from George Wallace to Jimmy Carter expressed outrage over the sentence – the latter encouraged Georgians to drive with their headlamps on for a week in solidarity with Calley. A song in support of Calley sold nearly 2 million records. Calley’s sentence of life with hard labour was commuted to 20 years, then ten years, then, by Richard Nixon himself, finally commuted to 3 years of house arrest. 

Only 14 GI’s were sent to prison for such crimes (referred to as “war crimes” by the Pentagon despite the formality) committed in Indochina. The number is so low that it is reminiscent of a dictator who holds “elections” in which they receive 99.2% of the vote. It is a poor figleaf that in many respects is worse than complete inaction. It signals to potential perpetrators that they are right to dehumanise and victimise enemy civilians (even “friendly” enemies) and that if they overstep the bounds of acceptable behaviour their righteous feelings will be taken into account. It fuels backlash and a self-righteous nationalism that situates barbarism in the essential nature of the victims of actual barbarism.

The ICC is constitutionally obliged to uphold this system. If powerful aggressors choose to make tokenistic, insincere or even subversive performances, the ICC will honour their efforts by granting blanket impunity at the international level.

It’s All Pretty Fucked, Isn’t It?

I hope that this is enough to convince you that the ICC should be abolished, but that is not my purpose in writing this piece. What I really hope to achieve is to stop people from boosting the oppressors' court and to stop looking in stupid places for solutions that actually advance the cause of justice for Palestine. There is no case for respecting a diversity of approaches when this is an institution that will suck in every joule of energy given to it and use that against the innocent. The ICC will help Israel commit genocide with impunity. The ICC may, and probably will, be used against effective Palestinian leaders, assuring a future of continued misleadership and division. The way to stop it is to monitor the future actions of the court, understanding the traps it lays and explaining that understanding to others. 

At base the ICC has a terrible reputation already, but the public is shielded from this fact by the complacent deference of the amplified class. We must work to end that, starting now.

A Plea for Financial Support

It took me an inordinate amount of time to write this piece. In the course of writing Mohammed Deif and Ismael Haniyeh were killed and it was publicly revealed that William Calley had died earlier. Other events have occurred that occasioned revisions. The slow pace of writing becomes a cause for even more delay. I mention this because I have many other pieces that I feel I should write, including some that I have already begun. I do not need money to survive, but at this urgent hour I am getting desperate for more time to write.

I have been slowly writing very lengthy pieces like this for over a decade now. I have heretofore deliberately avoided all forms of monetisation because I did not want to be trapped by financial considerations into changing my approach. I don’t write for a general audience and I don’t preach to the choir. I try to write things that challenge people who may in all other respects share my political values and causes. If I think it takes 14,000 words to deal with a topic, I write those words and I don’t concern myself with the impact on readership numbers. I no longer fear that monetisation could corrupt me nor change these facts. I do not need a lot to sustain me, but an indication from any readers who appreciate my work enough to pay a few bucks would go a long way towards emboldening me to start more monetisation and cut back on my work hours. My day-job is far less important than this, and they won’t miss me much. I believe that my voice is quite different to the vast bulk of that which is currently available. If you agree please consider giving a little bit of money to my ko-fi account here.

Kieran Kelly researches and writes about genocide for his website ongenocide.com