International justice for Ukraine but not Palestine?

A neighborhood in Beit Hanoun, northern Gaza, after it was destroyed in Israeli bombing, May 2021.
Mohammed Zaanoun ActiveStills

International law is held up as a yardstick by which to judge the conduct of all states and non-state actors equally.

But the disparity between North Atlantic countries’ opposition to Russia’s invasion of Ukraine, on the one hand, and their support of Israel’s decades-long violent rule over Palestinians, on the other, suggests instead that the yardstick of international law is a weapon wielded to uphold imperialism.

Palestinians have called for a single standard of justice long before the state of Israel was even declared on the ruins of depopulated Palestinian cities, towns and villages.

The Gaza-based Palestinian Center for Human Rights reiterated that call last week.

“The standard for justice must be one for all peoples of the world,” the group said.

However, that standard is once again proving to be “a matter ruled by interests” in which politics trump international law, which is in turn “used by politicians as a ploy to serve their purposes,” as PCHR states.

The Palestinian group is calling on Karim Khan, chief prosecutor of the International Criminal Court, to visit Palestine as soon as possible, like he recently visited Ukraine.

So far, Khan has made no comment on the Palestine investigation since his tenure as chief prosecutor began last June, not even after Israel imposed “terror group” designations on Palestinian human rights groups providing evidence files to the court.

ICC investigations

Both the situations in Palestine and Ukraine are being investigated by the ICC.

The contrasting reception to the announcement of those investigations, launched in 2021 and 2022, respectively, illustrates once again how supposedly liberal democracies view international law not as requiring universal compliance but as cudgel to be used against their enemies.

Khan’s predecessor, Fatou Bensouda, concluded a lengthy preliminary examination of the situation in Ukraine in December of last year, recommending a formal investigation into alleged crimes committed in the country by “all parties to the conflict.”

The preliminary investigation focused the Maidan protests beginning in November 2013, Russian annexation of Crimea in 2014 and hostilities between Ukrainian government forces and anti-government forces in the predominantly Russian-speaking Donbas region in eastern Ukraine beginning that same year.

Since neither Ukraine nor Russia are members of the ICC, the court’s jurisdiction in the country “covers genocide, crimes against humanity and war crimes” but not the crime of aggression, according to Human Rights Watch.

In late February, Khan announced that he had opened a formal investigation, saying that it would “also encompass any new alleged crimes” in Ukraine falling within the court’s jurisdiction.

Khan’s announcement was welcomed by many of the same states that oppose the ICC’s investigation of war crimes in the West Bank and Gaza Strip, opened a year earlier after a similarly protracted preliminary probe.

Those states have emphasized only the suspected crimes of Russian forces and not those of Ukraine, with the UK stating it leads the call for the ICC “to investigate Russia’s crimes.”

Liz Truss, the British foreign secretary, said that an ICC investigation was “urgently needed” and pledged that the “UK will work closely with allies to ensure justice is done.”

By contrast, last year British Prime Minister Boris Johnson sent a letter to the lobby group Conservative Friends of Israel reiterating the country’s opposition to the court’s Palestine investigation.

Human Rights Watch described the letter as a “brazen assault” on the court’s independence as it seemed “intended to put political pressure on UK nationals set to serve on the court,” including the newly elected Khan.

The US – which placed economic sanctions on Bensouda during the Trump administration over ICC probes in Afghanistan and Palestine – is reportedly assisting Ukrainian authorities in gathering evidence of war crimes, despite US laws limiting its ability to do so.

US President Joe Biden, not waiting for the conclusion of any credible independent investigation, has described Russia’s actions as “war crimes” and “genocide.”

But his State Department rejects the well-founded conclusion of multiple esteemed human rights groups that Israel perpetrates apartheid against Palestinians, calling the accusation “absurd.”

Meanwhile, Washington has led the imposition of sweeping sanctions on Russia while legislators in dozens of US states have introduced bills aimed at undermining the Palestinian-led boycott, divestment and sanctions movement or otherwise criminalizing criticism of Israel.

Similarly, the European Union announced that it would provide funding, support, training and equipment to Ukrainian authorities to gather evidence that could be submitted to the ICC.

And just like Washington, Brussels is not waiting for the outcome of any investigation to conclude that Russia is committing “war crimes.”

Canadian Prime Minister Justin Trudeau, whose government also opposes the ICC investigation in Palestine, has declared that it is “absolutely right” to call Russia’s actions in Ukraine a genocide.

Trudeau is sending the Royal Canadian Mounted Police to Ukraine to assist the ICC investigation – apparently at the request of Karim Khan, the ICC chief prosecutor.

“We don’t have a political agenda”

Khan, meanwhile, insists on the court’s independence.

“There’s an important role for an independent prosecutor’s office,” Khan told CNN after his visit to Bucha, a Ukrainian city where Russia is alleged to have committed war crimes.

“We don’t have a political agenda, we’re not in favor of Ukraine and against Russia, or in favor of Russia or against Ukraine, we’re in favor of humanity,” Khan added.

But a coalition of organizations that campaigned to establish the ICC warned that the “unprecedented support for the role” of the international tribunal following the opening of a Ukraine investigation needs to be matched with the funding needed “to deliver justice in all situations that come before the court.”

The coalition said that the “court’s budget has consistently been limited” by state parties, impacting the court’s “effectiveness” and delaying “victims’ access to justice.”

The coalition notes that Khan’s office has recently made an “exceptional request” for “voluntary contributions … provided outside the court’s budget, including through a newly established trust fund and gratis personnel.”

This threatens the court’s legitimacy and perceived credibility, the coalition argues.

That legitimacy is already threadbare given the widespread criticism about the court’s apparent bias: So far, every one of the 47 defendants charged or tried since the ICC’s founding has been from an African state.

The coalition states that pledges for funding and personnel in the context of a specific situation “sends the unfortunate signal that justice for some victims should be prioritized over others, depending on political will, including a willingness to make resources available.”

No one should be surprised if states throw resources at the court to support the investigation in Ukraine while starving the probe in Palestine, thereby ensuring that international law remains a tool of the powerful to ensure their own interests.