TABNAK –Richard Anderson Falk, United Nations Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, says hard to predict at this stage as to whether the ICC chamber of judges will accept the Prosecutor’s recommendation to allow the issuance of an arrest warrant for Netanyahu.
He adds: “Even if issued there is almost no chance that it will be implemented unless Netanyahu is foolish enough to travel to a state that is a party to the Rome Statute, which imposes a legal duty on those states to carry out their obligation to implement ICC legal rulings.”
Following is the text of the interview of TABNAK with professor Richard Anderson Falk:
Q: Despite widespread opposition, Israel attacked Rafah. Why did Netanyahu insist on this operation?
A: Israel claimed Rafah to be a Hamas stronghold, with many tunnels on the Egyptian border allowing for smuggling of weaponry and cross-border transactions. There was no way for Netanyahu to claim a victory on the basis of the destruction of Hamas without attacking and destroying Rafah. Besides, his far-right coalition partners in Tel Aviv, Ben-Gvir and Smotrich, threatened to leave the government if Israel failed to attack Rafah, and that would mean new elections and the almost certain defeat of Netanyahu, and hence his exposure to resumed prosecution in two interrupted bribery cases before an Israeli court.
There was widespread international opposition in advance of such an attack, including it seemed from the US Government, but when the attack came the high profile opponents of the military operation have remained essentially silent, allowing this cruel phase of Israel’s genocide to continue.
Q: Biden's extensive support for Israel seems to have negative results on his voting base. Protests continue in American universities and among minorities who are Biden's vote base. Is it possible for the United States to put pressure on Netanyahu's government to stop the war?
A: Many supporters of the Palestine struggle thought that political calculations would lead Biden to stick to his public opposition to any military attack on Rafah. Yet in fact despite the ferocity and extensiveness of the attack, Biden has refused to condemn Israel and to respect his own supposed ‘red line’ (this far, and no further), and there is no indication that the US will change its policies of unconditional support of Israel, including providing military supplies and economic assistance, as well as total diplomatic support at the UN and elsewhere. As such it violates the complicity provisions of the 1948 Genocide Convention that legally obliges all parties to the treaty to act to prevent genocide, as well as to refrain from participation.
In the interim, Trump has been convicted in a New York City criminal court and faces sentencing. The polls show a close election with some current indications that Trump is likely to prevail in November. Biden seems reluctant to break with his Zionist donor base, and believes that his more liberal approach to domestic issues in the US will yet lead enough voters in the states that are closely divided to end up supporting and electing him as ‘the lesser of evils.’
Q: The International Criminal Court (ICC) has applied for the arrest and detention of Netanyahu. Will this request become a final ruling? What effect will this request have on Netanyahu's political future?
A: It is hard to predict at this stage as to whether the ICC chamber of judges will accept the Prosecutor’s recommendation to allow the issuance of an arrest warrant for Netanyahu. Even if issued there is almost no chance that it will be implemented unless Netanyahu is foolish enough to travel to a state that is a party to the Rome Statute, which imposes a legal duty on those states to carry out their obligation to implement ICC legal rulings. Since neither Israel nor the US are member states of the ICC, Netanyahu has little to fear except to stay clear of ICC member states.
The political effect in Israel of an arrest warrant will be one of anger at the ICC as daring to proceed criminally against Netanyahu despite his unpopularity at home. Internationally, it will be seen as an appropriate initiative by the ICC given the genocidal criminality of Netanyahu over a long period of time. The only strong regrets that Netanyahu will unlikely be arrested and prosecuted comes from the peoples of the world who would like to have him held responsible for his crimes. The ICC will be seen as both weak at the implementation stage, but deserving praise at law-declaring stages by seeking the arrest of someone who has so openly directed this genocidal campaign against the totally vulnerable civilian population of Gaza, yet enjoys continuing government support in several Global West states.
Q: The United States has rejected the jurisdiction of the ICC for such a request. What is your assessment? Meanwhile, a similar sentence was proposed for Putin by this court and it was welcomed by the United States.
A: The US conditioned its criticism of the ICC on the fact that Israel was not a member and not subject to action taken under the Rome Statute, the treaty setting forth obligations of its adherents, currently 124 countries. The ICC is given the authority to act in response to international crimes committed on the territory of states that are members, and this was the basis of urging the ICC to act against Putin in the aftermath of the 2022 Russian attack on Ukraine, which is not an adherent to the Rome Treaty. With respect to Netanyahu, the authority of the ICC is based on the fact that as of 2015 Palestine has been formally accepted as a member state. As suggested by the question from legal and political perspectives the US inconsistent response to the two case is a clear example of double standards. The unfortunate impression is created that the value and authority of the ICC is a matter of political expedience rather than respect for the rule of law, which at minimum requires that equals be treated as equals.
