Historical US and Israeli Abuse of ICC Leads to Netanyahu Indictment

By Kit Klarenberg – June 4, 2024

On May 20, International Criminal Court prosecutor Karim Khan issued a statement outlining why he was seeking international arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Security Minister Yoav Gallant for “crimes against humanity” committed in Gaza since “at least” October 8, 2023. To anyone who has been spectating the Gaza genocide since that fateful day, the welter of horrendous charges leveled at the pair won’t have been a shock:

Starvation of civilians as a method of warfare; willfully causing great suffering; willful killing; murder; intentionally directing attacks against a civilian population; extermination; persecution; inhumane acts.”

The list went on and on. Khan declared that these “crimes against humanity” were “committed as part of a widespread and systematic attack against the Palestinian civilian population, pursuant to state policy.” Furthermore, these atrocities, in the “assessment” of ICC prosecutors, “continue to this day.” Khan’s statement went on to note his office had collected ample evidence, pointing to Israel having “intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival.”

What is shocking is that Netanyahu and Gallant were indicted in the first place. As a May 28 Guardian investigation exposed in stunning detail, Israel has since 2015 sought to systematically sabotage and undermine the ICC’s activities to insulate itself and its military and political chiefs from prosecution. This has included threats to prosecutors and their families, widespread surveillance and infiltration, designating Palestinian organizations “terrorists” for assisting the court, and outright blackmail of the Court’s staff.

“I have a question: For every ICC prosecutor that has spoken out, how many are there that have kept silent? That accepted the deal and bent before the threats?” geopolitical analyst Firas Modad asks. He tells MintPress News the indictment in some ways “helps Netanyahu politically, allowing him to cast himself as the one politician standing up to external pressure, while his enemies, foreign and domestic, are trying to impose a defeat on Israel”:

The problem Netanyahu is facing, however, is not a narrative one, but a real one. Namely, the Israeli military is not up to the job and is unable to achieve the objectives Netanyahu set for it. Hamas is nowhere near being dismantled; it can still rule Gaza the day after the war ends, and it is still holding on to its captives.”

In a televised interview following Netanyahu’s indictment, Khan revealed that while the ICC built cases against Israeli officials, he was threatened by numerous Western sources – including “elected leaders” – to terminate his quest permanently. One “senior official” openly warned him that the Court was “built for Africa and thugs like Putin,” not the West and its allies. The veteran prosecutor countered that the ICC has universal jurisdiction:

We don’t view it like that. This Court is the legacy of Nuremberg. This Court should be the triumph of law over power and brute force!”

Western contempt for the ICC, and “international justice” in general, is well-established as it is brazen and contemptible. Having created a system that, for propaganda purposes, seeks to achieve “the triumph of law over power and brute force” explicitly and exclusively in the Global South while protecting the empire and its foreign proxies, puppets and pets from censure, this mission is now coming back to bite the very people who created it. It is just the latest indication we are living in a very different world today, and that is an irreversible trajectory.

‘JUST CONVICT EVERYONE’
In many ways, the International Criminal Tribunal for the former Yugoslavia (ICTY) set a clear precedent for the modern system of “international justice,” in which the U.S. and its vassals and proxies are not only immune from prosecution for committing grave war crimes, but simultaneously act as judge, jury, and executioner when non-allied leaders, governments and militaries purportedly do so. Not coincidentally, the ICC is the ICTY’s formal successor. Many contemporary Court prosecutors, including Khan, cut their teeth in the institution.

The UN established the Tribunal to prosecute political and military officials in the Balkans for atrocities committed during Yugoslavia’s tumultuous breakup. Theoretically, Bosniaks, Croats, and Serbs were all liable for indictment, but in practice, Serbs were overwhelmingly and disproportionately targeted. Meanwhile, not a single atrocity or war crime committed against Serb civilians was satisfactorily prosecuted. Bosniak and Croat military and political figures were either not indicted, acquitted, or received minimal sentences for heinous crimes.

Some argue this disparity reflects how Serbs were the predominant aggressors and violators in the wars of the 1990s. However, anti-Serb bias and the necessity of whitewashing and ignoring the crimes of Washington’s Bosniak and Croat proxies was a core component and objective of the ICTY from day one. A February 1993 CIA memo proposed “establishing a war crimes tribunal” for the express purpose of “publicizing Serbian atrocities.” It further warned against “even treatment of Bosniak transgressions.”

The ICTY was created three months later and fulfilled its founding mission over the next 24 years. Many Serbs were prosecuted for grave crimes, up to and including genocide. Frequently, they were jailed for lengthy periods, amounting to life imprisonment. In multiple high-profile cases, these officials were convicted despite a total lack of evidence they’d ordered, approved, or committed the crimes they were accused of. They were sent down via the highly controversial doctrine of “Joint Criminal Enterprise,” derisively known as “Just Convict Everyone.”

Conversely, many Bosniak and Croat military and political figures who were indicted ultimately walked free or received an effective slap on the wrist despite overwhelming evidence directly implicating them in the planning and commission of horrendous crimes against humanity. For example, Bosniak military commander Naser Oric openly boasted to the media during the war of brutally torturing and murdering Serb soldiers and civilians, taking no prisoners. His crimes were widely reported at the time and well-documented.

Yet, the Tribunal only convicted him for failing to prevent the inhumane treatment of prisoners. Witnesses who testified to his crimes in other separate trials were not called during his own, and their evidence was not cited. He received a two-year sentence but was released immediately due to time served. Similarly, no one has ever been held accountable for Operation Storm in August 1995, a savage NATO-backed strike at Serb-majority territory in Croatia, which displaced almost the entire civilian population.

Dubbed “the most efficient ethnic cleansing we’ve seen in the Balkans” by Swedish premier Carl Bildt, hundreds of thousands of Serbs were forced to flee UN-protected areas, and thousands were killed. For weeks after, Croatian forces and police systematically looted and murdered their way across the territory, summarily executing Serbs – including the elderly and infirm – who hadn’t escaped, stealing their property, and burning villages to the ground. The Croatian government then passed legislation making it virtually impossible for the displaced to return.

Records unearthed by the ICTY show the Western-sponsored Croatian leader Franjo Tudjman, an unabashed Holocaust denier and fascist venerator, explicitly planned “to inflict such blows that the Serbs will to all practical purposes disappear,” an unambiguous indicator of genocidal intent. While he was never prosecuted, three Croatian generals did land in the Tribunal’s dock. Unbelievably, the ICTY ruled Operation Storm wasn’t concerned with displacing the Serb civilian population, and not only didn’t amount to ethnic persecution, but wasn’t even a war crime.

Why Is Jordan Cracking Down on Support for Gaza?

‘USEFUL TOOL’
In light of the indictment of Netanyahu and Gallant, it is vital to bear in mind that ICTY judgments are held up today by Bosniak and Croat ethnonationalists as incontrovertible proof of their innocence and victimhood when they were co-belligerents in brutal civil wars, supported by the West financially, politically, and militarily. Were Israeli officials to be acquitted, the rulings would, of course, similarly be exploited to justify the Gaza genocide and undoubtedly encourage Israel to commit further, even greater, atrocities.

Still, the fact that Netanyahu and Gallant have been indicted at all is a bitterly ironic boomerang. The U.S. and its allies have relentlessly promoted the ICC as a fundamental cornerstone of the “rules-based international order.” It was always intended as a hegemonic propaganda construct to frame Washington and its allies as unimpeachable bastions, guardians, and enforcers of “rights” internationally. Meanwhile, their “enemies” could be decisively maligned as manifestations of evil and criminality with the Court’s legitimizing stamp.

At the start of May, 12 prominent Republican senators – including notorious hawks Mitch McConnell, Ted Cruz and Marco Rubio – dispatched a strongly-worded letter to the ICC, expressing grave concerns about future indictments of Israeli officials for war crimes committed since October 7, 2023. They warned that should such warrants be forthcoming, “we will interpret this not only as a threat to Israel’s sovereignty but to the sovereignty of the U.S.” The dirty dozen added:

The U.S. will not tolerate politicized attacks by the ICC on our allies. Target Israel and we will target you. If you move forward with the measures indicated in the report, we will move to end all American support for the ICC, sanction your employees and associates, and bar you and your families from the U.S. You have been warned.”

These threats are a clear contravention of the Rome Statute. While U.S. Secretary of State Antony Blinken unabashedly declared that the White House is “committed” to punitive actions against the ICC over its “profoundly wrong-headed decision” to indict Netanyahu and Gallant, the Court has shown no indication of backing down yet. Moreover, the U.S. reaction greatly emphasizes the fundamentally prejudicial and discriminatory nature of Western-led international justice, in turn intensifying global clamor for the ICC to fulfill its stated objectives.

Demonstrators raised ‘bloody’ hands to greet Antony Blinken as he arrived to testify at a Senate hearing, May 21, 2024. Photo: Allison Bailey/AP.

It evidently never occurred to Western powers that they could ever be held to the standards they preach and seek to enforce upon the Global South or that the methods, concepts and structures they created to justify their imperialist aggression could be used against them. Throughout the Yugoslav wars, NATO committed many war crimes with total impunity, killing countless civilians. The March-May 1999 bombing of Yugoslavia was in itself completely illegal, as it lacked UN Security Council authorization.

NATO member states were the ICTY’s key funders and facilitators. There was thus no question of the alliance being held accountable for any atrocities it committed against Serbs. “You’re more likely to see the UN building dismantled brick-by-brick and thrown into the Atlantic than to see NATO pilots go before a UN tribunal,” the US Senate International Relations Committee spokesperson boasted in May 1999. The total number of Yugoslavs killed by military alliance bombing that year will likely never be known.

Declassified British Ministry of Defence files indicate that officials in London and MI6 identified symbolic civilian targets in Belgrade for the bombing, fully conscious this would incur civilian casualties. Nonetheless, this was judged to be “worth the cost.” No comparable smoking gun, black-and-white evidence linking Yugoslav leader Slobodan Milosevic to any atrocity has ever emerged – quite the reverse. Yet, in May 1999, while NATO’s criminal bombing was ongoing, the ICTY indicted him for crimes against humanity.

As a State Department lawyer admitted in October of that year, “While the U.S. and Britain initially thought an indictment of Milosevic might interfere with the prospects of peace, it later became a useful tool in their efforts to demonize the Serbian leader and maintain public support for NATO’s bombing campaign against Serbia.” This more widely reflected how the ICTY was “widely perceived within the government as little more than a public relations device and as a potentially useful policy tool”:

Indictments also would serve to isolate offending leaders diplomatically, strengthen the hand of their domestic rivals and fortify the international political will to employ economic sanctions or use force.”

The bombing of Yugoslavia created a grisly international precedent, giving rise to the doctrine of “illegal but legitimate.” It has been used ever since by NATO to justify the destruction of troublesome countries the world over, from Iraq to Libya. In another bitter boomerang, though, Russia has cited the military intervention as justification for its invasion of Ukraine. As an essay by the EU’s European Consortium for Political Research lamented:

The Kremlin justifies its actions by blaming ‘The West’ collectively, accusing Western nations of applying international norms in an arbitrary fashion. The Russian Federation leadership has frequently used the so-called Kosovo precedent to justify illegal military activity in neighbouring countries, including Ukraine. So, did the Kosovo precedent create conditions that allowed Russia to violate fundamental United Nations principles of sovereignty, and undermine the credibility of international law? The answer, in short, is yes.”

Russian officials have also frequently declared since the proxy war began, “the era of impunity is over.” There is undoubtedly no greater testament to the integrity of those words than the ICC indictment of Netanyahu and Gallant. We live in a multipolar world, and there will be no return to “normal.” As such, systems of “international justice” can no longer function purely as propaganda constructs to penalize “Africa and thugs like Putin.” Israel’s ability to act unilaterally is over, too. Which may be an even more devastating barrier to its criminality against the Palestinians. As Firas Modad told MintPress:

By contrast, Netanyahu can claim that his leading rivals – Gantz and Lapid – want the war to end in line with the wishes of external powers, leaving Israel in a situation where it has been embarrassed by Hamas and deterred by Hezbollah. Strategically, this guarantees that Israel will now always fight multi-front wars.”

(MintPress News)