Justitia’s scales are loaded against Israel

Condemnation raining down on Israel
Francesca Albanese, the Italian layer and UN Special Rapporteur on Palestine does not mince words in her continuing one-sided condemnation of Israel and its actions.
After the recent Israeli bombing run on two prominent members of Hamas, that led to a horrible fire and the death of dozens of civilians, she once more took to X, writing:
“More horror in the #GazaGhetto. The Israeli occupation forces have bombed a camp for displaced Palestinians in #Rafah, causing plastic tents to catch fire and tragically burning people alive. This cruelty, along with blatant defiance of the int'l law and system, is unacceptable.
The #GazaGenocide will not easily end without external pressure: Israel must face sanctions, justice, suspension of agreements, trade, partnership and investments, as well as participation in int'l forums.” (X, May27, 2024).
The activist rapporteur has been a consistent critic of Israel, not losing many words on Hamas’ atrocities. Soon after the October 7 abominations, she warned that Palestinians were in grave danger of mass ethnic cleansing, arguing according to the Palestinian Chronicle that “There is a grave danger that what we are witnessing may be a repeat of the 1948 Nakba, and the 1967 Naksa, yet on a larger scale. The international community must do everything to stop this from happening again,”… noting that Israeli officials have openly advocated for another Nakba” (Palestinian Chronicle October 14, 2023).
Francesca Albanese’s voiced her extreme views soon after the October 7 massacre and the hostage taking, but similar thoughtless shooting-from-the-hip condemnation is now raining down on Israel, its leadership and its attempts to eliminate Hamas.
Like many others UN’s Antonio Guterres took to X to write: ““I condemn Israel’s actions which killed scores of innocent civilians who were only seeking shelter from this deadly conflict. There is no safe place in Gaza. This horror must stop.”
EU Foreign Policy chief Josep Borrell: “Horrified by news coming out of #Rafah on Israeli strikes killing dozens of displaced persons, including small children. I condemn this in the strongest terms. There is no safe place in Gaza. These attacks must stop immediately. ICJ orders & IHL must be respected by all parties.”
Emmanuel Macron joined the chorus of lamenting voices: “Outraged by the Israeli strikes that have killed many displaced persons in Rafah. These operations must stop. There are no safe areas in Rafah for Palestinian civilians. I call for full respect for international law and an immediate ceasefire”.
Not to outdone Erdogan promised: “We will do everything possible to hold these barbarians and murders accountable who have nothing to do with humanity.” (Strangely he wasn’t thinking of Hamas, …)
While the Palestinian Authority accused Israel of “deliberately targeting” the tents of displaced people, and said the perpetration “of this heinous massacre by the Israeli occupation forces is a challenge to all international legitimacy resolutions.”
These immediate unthinking reflex-like condemnations show world leaders giving up all pretense of fairness. Justitia’s scales are longer balanced, un-reflected opinion is weighing the Israeli side down. World leaders have evidently sunk to the level of the widespread student protests against Israel. Perhaps even taking their lead from the protests and their reflections in mainstream media?
Not all have yet sunken to the level of Yolanda Diaz, Minister of Labor and Social Policy of Spain, who recently tweeted “We welcome today the fact that Spain recognizes the State of Palestine, but we cannot stop there. Palestine will be free from river to the Sea” (Emphasis added).
A few are holding back apparently still remembering why Israel is attacking Hamas in Gaza and even wanting to know what really happened on the that fateful Sunday on May 26, when dozens were killed. Among them a surprisingly subdued response from an U.S. official and even from an UN official.
From the U.S. Biden is taking his time, leaving a first response to a national security council (NSC) official who said: "Israel has a right to go after Hamas, and we understand this strike killed two senior Hamas terrorists who are responsible for attacks against Israeli civilians. But as we've been clear, Israel must take every precaution possible to protect civilians."
Later White House spokesperson John Kirby, indicated the strike did not cross a red line for the U.S. “As a result of this strike on Sunday, I have no policy changes to speak to. It just happened. The Israelis are going to investigate it. We’re going to be taking great interest in what they find in that investigation. And we’ll see where it goes from there.”
While Volker Turk, United Nations High Commissioner for Human Rights, is noting “that the IDF has announced a review, but what is shockingly clear is that by striking such an area, densely packed with civilians, this was an entirely predictable outcome. It is crucial that such reviews lead to accountability and changes in policy and practices.” Adding that “Palestinian armed groups must stop the firing of rockets which are inherently indiscriminate, in clear violation of international humanitarian law. They must also unconditionally release all hostages at once.”

Preliminary response from Israel
In Israel Netanyahu has said “Despite our best effort not to harm those not involved, unfortunately a tragic mistake happened last night. We are investigating the case. On May 28 ABC news is reporting that “the U.S. received information from the Israelis overnight that they believe shrapnel or something else from the strike ignited a fuel tank 100 meters away, which engulfed a tent, creating a massive fire, according to a U.S. official.” While it may explain the devastating fire, it would seem that something else must have happened, to explain the horrible carnage. A secondary explosion perhaps?
IDF spokesperson, Rear admiral Hagari, later tried to provide a little more detail. Explaining that IDF had taken a number of steps before the strike to eliminate the two Hamas commanders Yassin Rabia and Khaled Najjar, in order to avoid civilian casualties. Using two small missiles with a 17 Kilogram warhead (might indicate the use of U.S. made GBU39 missiles), and waiting till the area around the strike was clear.
Hagari also provided IDF infographics indicating that the IDF the strike was hitting in an area 180 meters distant from the tent shelters. While Hamas claims the strike hit the tent area. IDF has also been accused of striking an area designated as a humanitarian safe zone.

Here Hagari again used an IDF infographic to show that the strike hit more than a kilometer outside the humanitarian safe zone at al-Mawasi. In relation to the possibility of a secondary explosions causing the devastation Hagari referred to what he called phone call intercepts, between  two Palestinians in Gaza apparently heard saying: “"Yes, this is an ammunition warehouse. I tell you it exploded. The Jewish bombing wasn't strong, it was a small missile, because it didn't create a large hole. And afterward a lot of secondary explosions.” That is what Hagari had to say on May 28. Independent verification is not possible
Still investigations are ongoing, meaning that hasty conclusions like the ones provided by certain political leaders ought to be avoided. While this might explain the tragedy, it may indicate that Israel now is being judged before we know what happened.
Perhaps this is also the case in relation to the cases against Israel in The International Court of Justice (ICJ) and The International Criminal Court (ICC).   In the following focusing on the   ICC’s  action  against  Israel.

The sensational ICC application for Israeli arrest warrants
On may 20 Prosecutor Karim A.A. Khan of the International Criminal Court in The Hague announced he was filing applications for warrants to arrest Benjamin Netanyahu, the Prime Minister of Israel, and Yoav gallant, Minister of Defence of Israel. In the same announcement he also sought warrants to arrest three prominent members of Hamas. Yahya Sinwar, Mohammed Diab Ibrahim Al-Masuri and Ismael Haniyeh.
Prosecutor Karim A.A. Khan certainly succeeded in lighting a media explosion with this sensationalist announcement.
Three prominent members of Hamas or Harakat al-Muqawama al-Islamiya (Islamic Resistance Movement), an organization that is designated as a foreign terrorist group by the U.S. and found on the EU terrorist list, suddenly listed and grouped together with the two most prominent ministers of the only democracy in Middle East, a “Rechtsstaat” characterized by the rule of law. Grouping them like in a Western in your face “Wanted poster.”

One may certainly ask why they grouped together in the prosecutor’s application, and may also ask, why the Karim Khan has not sought arrest warrants for the members of Hamas much earlier, after all they have made no heal of their involvement in in the October 7 barbarism. Or why he is now ready to file warrants for arrests of Netanyahu and Gallant? Does he have any clear evidence that they have committed crimes against humanity.
Let’s see his arguments especially in relation to Netanyahu and Gallant. With reference to the so-called Rome-Statute he argues that they after October 8, 20223, bear criminal responsibility for the following war crimes and crimes against humanity committed on the territory of the State of Palestine (The Rome Statute can be found at https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf).
It is important to remember that Israel is not among the 124 signatories, and neither is the U.S. Raising the question of the ICC jurisdiction. There is also the question of jurisdiction over Gaza, a non-state. Apparently, the Prosecutor believes he has jurisdiction in relation to crimes against humanity in both Gaza and the Hamas attacks in Israel.
Here the accusations against the two Israeli leaders:

Starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of the Statute;
Wilfully causing great suffering, or serious injury to body or health contrary to article 8(2)(a)(iii), or cruel treatment as a war crime contrary to article 8(2)(c)(i);
Wilful killing contrary to article 8(2)(a)(i), or Murder as a war crime contrary to article 8(2)(c)(i);
Intentionally directing attacks against a civilian population as a war crime contrary to articles 8(2)(b)(i), or 8(2)(e)(i);
Extermination and/or murder contrary to articles 7(1)(b) and 7(1)(a), including in the context of deaths caused by starvation, as a crime against humanity;
Persecution as a crime against humanity contrary to article 7(1)(h);
Other inhumane acts as crimes against humanity contrary to article 7(1)(k).

Karim Khan “submits that these acts were committed as part of a common plan to use starvation as a method of war and other acts of violence against the Gazan civilian population as a means to (i) eliminate Hamas; (ii) secure the return of the hostages which Hamas has abducted, and (iii) collectively punish the civilian population of Gaza, whom they perceived as a threat to Israel.”
And the evidence…?
Karim Khan says that applications for arrest warrants were “the outcome of an independent and impartial investigation by my Office. Guided by our obligation to investigate incriminating and exonerating evidence equally, my Office has worked painstakingly to separate claims from facts and to soberly present conclusions based on evidence to the Pre-Trial Chamber.”
In his statement on May 20, 2024, he does present any facts at all! What he does is listen the kind of evidence that has been collected, consisting of “interviews with survivors and eyewitnesses, authenticated video, photo and audio material, satellite imagery and statements from the alleged perpetrator group.” He also asserts that 1.1 million people in Gaza are facing catastrophic hunger. Sounds more like a postulate, as evidence is again lacking in the statement. Karim Khan states that he convened a panel of experts on international law “to support the evidence review and legal analysis in relation to these arrest warrant applications.”
He argues that since last year he has warned Israel to take immediate action to allow access to humanitarian aid in Gaza at scale, threatening that those who do not comply “should not complain later when my Office takes action. That day has come.”“That day has come.” Strange expression from someone who should sound objective. It sounds ominously as if ICC prosecutor is finally ready to seek revenge for Israel’s disobedience. A kind of Israeli doomsday, where they are to be judged not by God, but by a small earthly group of men and women, that may have all sorts of politically motivated biases.
Let us have a look at the prosecutor’s backing group

A “Panel of Experts” chosen by a prosecutor out to get Israel
The panel convened by Karim Khan consisted of 6 experts in international law, and two extra advisors.
The panel was asked in January 2024 “to provide an opinion on whether there are ‘reasonable grounds to believe’ that the persons named in the warrants have committed crimes within the jurisdiction of the Court.”
The panel agrees that ICC has jurisdiction “relation to crimes committed on the territory of Palestine, including Gaza,” and likewise that ICC has jurisdiction over crimes committed by Palestinian Nationals in Israel. This is a consequence of an earlier Palestinian acceptance of ICC having that jurisdiction. Here the panel argues that Palestine including Gaza is a state for the purpose of the ICC statute. Not a view one would expect to find with all legal scholars. A UK government spokesperson reiterated the UK’s opposition to the ICC’s jurisdiction: “… we do not think the ICC has jurisdiction in this case. The UK has not yet recognized Palestine as state and Israel is not a State Party to the Rome Statute.”
Among the panel’s review of the separate charges brought by the prosecutor we find some strange examples, where beliefs seem to play the role of evidence.
Take this one: “… based on a review of material presented by the Prosecutor, the Panel assesses that there are reasonable grounds to believe that Netanyahu and Gallant formed a common plan, together with others, to jointly perpetrate the crime of using starvation of civilians as a method of warfare. (Emphasis added). Don’t we need more than believes to accuse Netanyahu and Gallant of crimes against humanity?
Or take this one: “The Prosecutor has also sought charges against Netanyahu and Gallant for the war crimes of willful killing or murder and intentionally directing attacks against the civilian population, as well as the crimes against humanity of extermination or murder and persecution for deaths resulting from the use of starvation and related acts of violence including attacks on civilians gathering to obtain food and on humanitarian workers.” Again supported by belief: “In the Panel’s view, there are reasonable grounds to believe that the suspects committed these crimes. The Panel also considers that there are reasonable grounds to believe that the crimes were committed in the context of a widespread and systematic attack against the civilian population of Gaza, pursuant to State policy.” (Emphasis added)
Really? Are these and other similar beliefs enough to provide legal support to the prosecutor Karim Khan’s seeking arrest warrants for Netanyahu and Gallant? Apparently in the panel’s own unified view they are. For having examined the warrants applications and the underlying evidence, with no evidence presented in the panel’s report, they conclude that “the Panel is satisfied that the process was fair, rigorous and independent and that the Prosecutor’s applications for arrest warrants are grounded in the law and the facts.”
Among the members of the panel, we find the starlike media celebrity quality of Amal Clooney, Adjunct Professor at Columbia Law School and a Senior Fellow at the Columbia Law School Human Rights Institute. Co-founder of the Clooney Foundation for Justice, which provides free legal support to victims of human rights abuses in over 40 countries.
On May 20 she wrote an article in the Financial Times about her reason for joining the panels and referred to the panel’s unanimous conclusion that supported the ICC’s prosecutor’s application. According to Amal Clooney “we felt we had a duty to accept the invitation to provide an impartial and independent legal opinion based on evidence. We were selected because of our expertise in public international law, international human rights law, international humanitarian law and international criminal law, and, in the case of two of us, experience as former judges of international criminal tribunals. Our common goal is advancing accountability and we have reached our conclusions based on an assessment of the warrant applications against an objective legal standard.”
She also argued that the step taken by the ICC prosecutor “is a milestone in the history of international criminal law.” And a legal exclamation mark it certainly was, but perhaps also millstone around the international criminal law. Inadvertently she is giving rise to our suspicion by saying out loud “The law we apply is humanity’s law, not the law of any given side.”
Somehow Amal Clooney’s “law of humanity” seem to transcend the earthly influence of states and power or might, seemingly locating humanity’s law in political appointed institutions with a few earthly members, ready to provide justice to the world, like the ICC. Other scholar warns: Recently, some publicists have started to speak of the “law of humanity” in order to challenge the role of nations and states in determining the world’s legal order. While this new usage captures the necessary universalism of supranational justice, it also threatens the premise that support just institutions, by confusing the nature and purposes of law, nations, peoples and the state.” (M.N.S Sellers “Republican Principles in International Law”).

Does grandstanding and prejudice play a role?
Prosecutor Karim A.A. Khan certainly seems to be a man with a mission. While the ICC has been accused in the past of having mainly focused on Africa, Karim Khan created quite a stir when turning his focus other parts of the World.
In 2022 he sought arrest warrants against President Putin and the Kremlin official Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights, over their involvement in the deportation of Ukrainian children. He has faced controversy in his earlier work, for instance as defender of the Kenyan President William Ruto, where accusations of witness intimidations led the ICC to drop charges. He has also done work for the sect like Ahmadiyya Muslim community, of which he is a member.
Amal Clooney had been silent on Israel Gaza, until it was revealed that she had been member of Karim Khan’s panel. Activists expecting her to take side for the Palestinians and against Israel. Venting their anger on social media and elsewhere. “This so called ‘humanitarian lawyer’ vocally stood up for Ukraine but is dead silent on Gaza,” a social media user wrote. When she showed up at British fashion awards, another wrote “arriving at the british (Sic) fashion awards, but hiding from genocide”.
Perhaps these comments show what social media masses had expected from Amal Clooney. Now with her presence in panel revealed and her article in the Financial Times, it suddenly turned out that she had not disappointed them. Indicating perhaps on which side of Justitia’s scales she put her weight.
Among the other members of the panel convened by the Karim Khan are Baroness Helena Kennedy KC, lawyer and human rights activist, who quite early seems to made up her mind in relation to Israel. In an interview in already October 2023 she condemned the atrocities committed by Hamas, but she also warned Israel against collective punishment saying that Gaza is being reduced to rubble” and condemned Israel’s actions to cut off water supply. “Water is a basic human right and its denial violates international law. It is a war crime.”

The flimsy argument for claiming ICC jurisdiction over Israel
Karim Khan’s simultaneous application for arrest warrants for Hamas terrorists and leaders of democratic state might have been made to sound impartial and to demonstrate that nobody is above the law.
This has the appalling consequence of equating democratic leaders of state with an apparently well-functioning legal system and independent courts with a terrorist regime in a non-state acting without regard for legal and moral constraints. This seems to be legally and morally abhorrent, and destroying the credibility of the ICC. Here it is important to remember what the The Rome Statute says about jurisdicion:
Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine
that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; ( Article 17, Rome Statute of the International Criminal Court).
This can of cause only mean that the ICC normally would not have jurisdiction over a state, where state in questions has showed that it willing and able to prosecute in cases involving its own citizens if involved crimes against humanity. To Israel itself and a neutral outsider it would seem that Israel with its legal systems and independent courts has shown that it is both willing and capable of prosecuting crimes against humanity on its own turf, and against invading terrorists.
Meaning that either ICC and its prosecutor have some kind of knowledge or is it just the belief that Israel is not willing to punish crime against humanity and/or are incapable of doing so. Past experience does not seem to confirm Israel is either unwilling or incapable of doing so. This would mean that ICC and Karim Khan are acting outside the stated jurisdiction of ICC.
With a fig leaf of an argument, the ICC prosecutor seems to believe he has found reason for the ICC’s jurisdiction: “The Government of The State of Palestine lodged a declaration under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court ("ICC") over alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014" Fine, then seek warrants for prosecution for members of Hamas, for in Gaza there is neither the willingness nor the capability for Hamas to prosecute itself for crimes against humanity. And as for “The State of Palestine” it would seem that this is not a state in the usual understanding of what constitute a state.

North South division loading on Justitia’s scales
Underlaying all this may a divisive struggle between what can be loosely seen Northern states and the Global South. One has to remember the sequence of events:
On November 23 South Africa wrote Karim Khan, requesting the prosecutor to investigate the situation in Palestine “for the purpose of determining whether one or more specific persons should be charged with commission of such crimes” (South African Embassy, The Hague, November 17, 2023). South Africa acting on behalf of The People’s Republic of Bangladesh, The Plurinational State of Bolivia, The Union of the Comoros, and The Republic of Djibouti.
At the other side of the division, Prime Minister Rishi Sunak condemned the prosecutors’ decision: “There is no moral equivalence between a democratic state exercising its lawful right to self-defence and the terrorist group Hamas … This is a deeply unhelpful development. Of course. it is still subject to a final decision, but it remains deeply unhelpful nonetheless.” (Rishi Sunak, May 21, 2024)
The speaker of the House of Representatives, Michael Johnson, voiced a fiery attack on the ICC’s action.  “America should punish the ICC and put Karim Khan back in his place …If the ICC is allowed to threaten Israel’s leaders, we know that America will be next … There is a reason that we’ve never endorsed the International Criminal Court, because it is a direct affront to our own sovereignty… We don’t put any international body above American sovereignty, and Israel doesn’t do that either” (Michael Johnson, May 23, 2024).  On May 28 the South African Minister of International Relations, Naledi Pandor, replied by saying “Of cause!” Countries aiding Israel should be liable for ICC prosecution.
The German government first tried a little fence sitting. Letting The Federal Foreign Office comment on the ICC prosecutor’s decision: “Durch die gleichzeitige Beantragung der Haftbefehle gegen die Hamas-Führer auf der einen und die beiden israelischen Amtsträger auf der anderen Seite ist der unzutreffende Eindruck einer Gleichsetzung entstanden.“ (Auswärtiges Amt, May 21, 2024).
Then the spokesperson for the Government, Steffen Hebstreit, really waded into dangerous water, when asked if Germany would arrest Netanyahu on a visit to Germany, if the ICC prosecutor actually got his arrest warrants. His answer “„Natürlich, wir halten uns an Recht und Gesetz” (Hebestreit, May 22, 2024). An answer resulting in a strong reaction form the leader of the opposition: “Ein Scandal.”

ICC on the verge of destroying its legitimacy?
Prosecutor Karim Khan evidently attempted to demonstrate impartiality, that nobody is above the law. But his attempt to demonstrate that ICC is not only an institution with single minded focus on injustice in Africa may be doing the ICC a serious disservice.
Explicitly equating Israel political leaders with leaders of the terrorist group of Hamas, looks legally, morally and politically outrageous, for the reasons we have discussed.
The prosecutor attempts to cloak his applications for the simultaneous arrest warrant against Israeli leaders and Hamas leaders under the guise of equality before the law, arguing “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. …This is the true risk we face in this moment.” (Karam Khan, Statement, May 20, 2024).
In reality he seems to do the opposite, applying his view of the law equally to extremely unequal cases. This must have been done for ideological and political reasons, and does certainly not demonstrate impartiality. One is tempted to ask if the prosecutor is waging a novel kind of lawfare under the thin guise of impartiality?
The prosecutor and perhaps the ICC as such is on the verge making a grave error of judgement. It will certainly be seen divisive, with supporters of Hamas and a non-existing state of Palestine greeting the so-called impartiality, while the other side will see it as ideological and political decision destroying the legitimacy of the ICC.