UNSC Draft Resolution on Palestine: Aotearoa Dances the Whisky Tango Foxtrot



This is an unscripted commentary about the abysmal and cowardly draft resolution circulated by Aotearoa/New Zealand at the UNSC. The resolution purports to encourage and to bring closer a “two-state solution” to the occupation of Palestine.
This resolution is founded on delusions and lies that can no longer be excused.
Apologies for the uneven audio quality in the first 10 minutes

Meet Willy Pete®: The Collected Orrmails


On the 15 of August 2015 Dr Vacy Vlazna published an article detailing an event that had happened exactly one year earlier during a protest at the offices of the NZ Superfund (a public retirement fund):
“…[C]oncerned young protesters [had] chained themselves in the NZSF office (Auckland) demanding that the NZSF immediately divest from Israel Chemicals (ICL) – a supplier of lethal white phosphorus to the US army for the manufacture of munitions sold back to Israel to barrage fire and death on Gaza.
In response to spokesperson Nadia Abu-Shanab’s passionate urging for divestment, Adrian Orr’s smug retort was,
‘Do you brush your teeth? ( Nadia: ‘Sorry?’) ‘Do you brush your teeth? White phosphorus is used in many places.’”
The speaker, Adrian Orr, is a very well paid executive. His smarmy attitude became even more apparent later: “Nadia then goes on to say, ‘Palestinians have actually identified the company’ and Orr butts in with appalling callous flippancy, ‘I can identify lots of companies that annoy me in life.’”

The article ended with a call to action:
“Ask folk to write to NZ SuperFund CEO Adrian Orr at enquiries@nzsuperfund.co.nz and Cc john.key@national.org.nz
with just two sentences:
Adrian Orr
CEO, NZ Superfund
Brush your teeth with white phosphorus or divest from Israel Chemicals!
No war crimes investment in my name.
…and click resend every morning to maintain the rage and principle.”
Everyone who reads this wherever you are in the world should do exactly that. I set out to do exactly that, but my restless fingers decided to do something a bit more elaborate.
By the request of a reader I have decided to gather together all of my love letters to Adrian Orr. Please respect the fact that I am opening my innermost intimate naked self to your probing gaze.

Re: Humble Apologies
To Adrian Orr,
In my email yesterday I fear that I may have implied that you were a fatuous overpaid moral midget. On reflection, however, I think I see your point. You were highlighting the “dual use” of chemicals that can have beneficial effects. It has made me reassess my whole stance on the people who made Zyklon-B. People forget that although more than a million died slow agonising deaths in giant gas chambers poisoned with Zyklon-B, it was also used to delouse clothing. By ridding the clothing of these pests, many people will have be saved from irritation. That is the thing about something like white phosphorus, we get on our moral high horse about people dying in terror and agony or being maimed, yet life is never just a matter of black-and-white like that.
Thank you for opening my eyes.
Yours gratefully,
Kieran Kelly

Re: I am Hurt
To Adrian Orr,
I must say that I am a little hurt and upset that you haven’t acknowledged the sincere apology that I addressed to you yesterday. It hurts because I look up to people like you. Some might say that you are a vacuous apparatchik who will say any old moronic thing – such as implying that white phosphorous is used in toothpaste – in order to justify the unjustifiable. But I know that is not the real you at all. I mean, what sort of world would it be if we paid $800,000 per annum to an utter imbecile? That would be completely unthinkable.
Anyway, I just wanted you to know that your disregard is hurtful, but I can rise above that. I actually have some news. This news involves you, but I’m not quite ready to divulge all just yet. Hopefully I can let the cat out of the bag tomorrow, and I assure you that you will be the first to know all about it.
Yours Sadly but with a Hint of Optimistic Anticipation,
Kieran Kelly.

Re: Exciting New Project
To Adrian Orr,
I notice that you still haven’t responded to my emails. Was it something I said? I really would appreciate it if you contacted me. I have something very important to discuss and it may be to your advantage.
In fact, I am struggling to contain my excitement here, because you have given me a gift more precious than you could ever hope to understand – the gift of inspiration. You see, it is entirely thanks to you that I have nailed it. I have come up with a concept for a new product that will take the world by storm – Willy Pete Toothpaste®!!!
This product will literally set the world alight one bathroom at a time, and I owe all of the credit to you.
I think I should point out here that when I said that this news would be to your advantage I didn’t want to suggest that my gratitude would extend to sharing profits, but I thought you might get a spiritual boost from knowing how inspiring you are and that is worth more than mere money.
What I am prepared to give you, though, is a complementary sample tube. All I need to do is find a material that can contain the white phosphorous paste and still be flexible enough to squeeze. As it stands the product has a tendency to ignite and burn right through flesh and into the bone itself. It also produces a cloud of fine particles that stays in a type of dehydrated gaseous suspension that will sear people’s eyeballs and burn people from the inside out when inhaled. It’s a real bummer, actually.
Yours in Excitation,
Kieran Kelly

Re: Please Help Me
To Adrian Orr,
I wouldn’t normally dare to ask this, but I am desperate. I really really really need your help.
As you know I have begun work on my exciting new product Willy Pete Toothpaste® but I keep hitting roadblocks. I know that being an entrepreneur means that I must take the good with the bad, but I am getting near breaking point. No matter how hard I try to make a nice sanitary product out of white phosphorous it still remains a chemical that kills, maims and poisons. The fact that it also brightens and whitens just seems a little insignificant to someone dying in fear and agony.
I realise that you are not a chemist but it would be a real help to me to just know how you mentally sanitise white phosphorous. For you, it is apparently easy to ignore all of that whole killing side of things. If we could just harness that sort of attitude – if only for marketing and quality control – it might just save the enterprise.
I am desperate here. I have always thought of you as the Jedi Master, while I am your humble Padawan. In that vein I know you will not mind if I beg you: Help me Obi Wan, you’re my only hope.
Yours Anxiously,
Kieran Kelly.

Re: Responses to Mr Orr’s Questions
To Adrian Orr,
I have not yet heard back from you and I am aware that you are probably very busy. I really would appreciate your input, but I know you must have questions of your own. I cannot promise to address all of your concerns but I think that these responses might answer your most urgent needs.
1.    Yes, but not for religious reasons. At the time the procedure was often performed as a hygiene measure.
2.    No Police record – just a solo album by Sting.
3.    World peace and an end to all hunger – JK, ;-) No, really I would ensure greater stability and a single lasting final solution to the problem of overpopulation.
4.    The death penalty, with no exceptions of coming from “broken homes” or any of that boohoo poor crim nonsense.
5.    Some of my best friends are Maoris.
6.    It is a business like any other and it is not appropriate for government to interfere with the market for alleged “moral” reasons.
You can see that I really am on the same page as you. You can trust me, so please write back!
Yours Transparently,
Kieran Kelly.

Re: Some Clarifications
To Adrian Orr,
I must apologise if my last email left you somewhat perplexed. If you are wondering why I wrote JK, it was not in reference to John Key, as in “FJK”. Not that I don’t want to mention John Key. He is a wonderful role model – a humble Kiwi who made it big at Merrill Lynch but rather than just looking after himself and his money he came back to give something back to our country by being our Prime Minister. But, though John Key is seldom far from my mind, or heart, in this instance JK stands for “just kidding”. And the punctuation that followed “;-)” is meant to represent a wink – letting you know that I didn’t actually mean what I said, in fact quite the opposite.
I have also been told that my choice of words was somewhat unfortunate. Apparently suggesting that there should be a “final solution” to global overpopulation sounds potentially harsh. I know from the way you responded to protesters concerned about the issues of horrific weaponry being used on our fellow human beings that you are like me. People like us could never suggest that harsh measures will be necessary to deal with excess population ;-) I am not one of those that believes that it is inevitable that the weaker members of our species must die for the greater good of all ;-) I am sure that overpopulation on a planet of finite resources will be solved by a coming together of all peoples in multicultural harmony ;-) And I definitely don’t think that poor people, who all seem to insist on breeding like rabbits, have only themselves to blame if they end up starving to death after they have poached all the game animals ;-)
I think you can appreciate the depth of my feelings about this.
Yours Resolutely,
Kieran Kelly

Re: Bloody Hippies!
To Adrian Orr,
I know that you were once like me – burning to make the world a better place and earn lots of money doing it. And what better place to do that than in the finance sector where the most ethical and the most productive activities of the entire human species are conducted. Yet, despite the fact that banks are more beneficent than any charity, they pay extremely high salaries.
But apparently all of these ridiculous hippie do-gooders are just too stupid to know that they can do more good in the finance sector than they can do with silly sit-ins (which only stop smarter and better people from doing the real work of making the world a better place) and they could earn a bloody good living at the same time. Not that any of them could handle a real job anyway, but I think we can agree that they should just bugger off and die somewhere.
These idiots don’t understand that you do the real work of making the world a better place and, quite frankly, it makes me wild that they have the gall to imply otherwise. Who do they think they are? That is why it was such a classic moment when you shot down that stupid blathering on about white phosphorous. That protester was lucky to get away with just being made a fool of. The day will come soon when you won’t have to put up with that protest nonsense. It will be like America and you, in your position, won’t even have to say a word. You can even pretend to be all supportive and say “let them speak,” but a big guard will say “sorry sir, I have my orders”. Then the hippie will be freaking out saying “Don’t tase me bro.” And then it’s ZAP! and you can go back to work doing real good.
What amazes me is that nobody makes these people protest, and they know it doesn’t do any good. They must want to get hurt, otherwise they’d just stay home and watch X-Factor like the normal plebs.
Yours Irately,
Kieran Kelly.

Re: From Far Beneath You
To Adrian Orr
I am very hurt by your continued refusal to respond to my emails, but I admire you for it. I know that if you acknowledged the time and effort I put into writing to you it would only be doing me harm. It would make me complacent and self-satisfied and it would destroy ambition and aspiration. I understand. For someone like you to stoop down to my level would be mollycoddling condescension. That is why, despite the frustration and pain, I revel in the fact that you respect me enough to ignore me.
To you my communications must be like those of a puny ant squeaking up at you. But your neglect drives me on, and one day I will be worthy of your attention. You see, I am still working on the Willy Pete Toothpaste®. I know that when I last wrote I had struck some obstacles, but the inspiration of knowing that you yourself embrace the idea of a toothpaste made from a chemical weapon gave me the faith required to continue. I know I am close to a breakthrough. I feel it in my bones. One day I will be able to hold my head up and look you in the eye. Perhaps we could play golf together, or maybe get some cocaine and hire some prostitutes.
Yours in Happy Anticipation,
Kieran Kelly.

Re: Do Not Forsake Me, Oh My Darling!
To Adrian Orr,
Once again I must humbly beg you forgiveness. I realise that I have been less than forthcoming recently with details of this product development phase for Willy Pete Toothpaste®. I have simply been snowed under. But the results, I hope, will speak for themselves. Sadly, those results will have to wait for another day. For now it is hush-hush.
You will recall that I was having difficulty with product development. Having taken the inspiration from your tacit suggestion that white phosphorous can be used in toothpaste, I was having real difficulties with the fact that any product that contains white phosphorous as an ingredient is toxic. Then there was the additional volatility problem, which meant we couldn’t even get the stuff in tubes without it igniting. That brings me to the third problem, the tendency for the product to sear, maim and kill consumers.
Obviously in the case of a company like Israel Chemicals they actually want the end consumer to be maimed or killed, but that is quite a different business model. At this stage we envisage that our marketing and distribution would focus on the major supermarkets rather than shooting the product at screaming fleeing consumers. I don’t think that New Zealand is quite ready for that level of guerrilla marketing. Mind you, if you hear anything from JK (as in FJK, not “just kidding”) then just give us the nod. I don’t want to say too much, but just think “dual use” and I’ll leave it at that.
Yours Ready to Face All Contingencies,
Kieran Kelly

Re: Utopia is Just Around the Corner
To Adrian Orr
You will be glad to know that I have been working hard. You fired me up. You light the way. You are the wind beneath my wings. But as they say, a project like turning a cruel and obscene weapon into a trusted household product is 10% inspiration and 90% perspiration and I am dripping wet now.
I know that you’ll think I’m being a tease, but I’m going to save the best news until later. I want to see if I can’t just string you on a little longer before the big pay-off. Suffice it to say that things are now progressing nicely. What I am prepared to let you in on is our brand new slogan for Willy Pete Toothpaste®.
Are you ready?
Wait for it…
The slogan is…
Feel the Burn!
Isn’t that great? The thing I love best about that slogan is that it has that Idiocracy factor. Rather than working on different levels, it doesn’t work on any level but it doesn’t matter. You know that film Idiocracy? There’s a great scene where everyone is starving because because the crops are dying. The crops are dying because they are being watered with sports drink. They are being watered with sports drink because it has electrolytes and the people know electrolytes are good because TV tells them so. Electrolytes are a selling point so they must always be good. It is like Newspeak in George Orwell’s 1984 where words are replaced with just “good” or “bad” so you don’t need to bother with context or nuance.
I don’t mind telling you that when Idiocracy came out some of my friends in marketing said we would never end up like that. I told them at the time that they were being negative, and I think it is safe to say that I was right. Look at Donald Trump.
Idiocracy is just round the corner and that is the inspiration for Willy Pete Toothpaste® and that is the inspiration for the slogan – Feel the Burn!

Once again I have you to thank, because when I saw you trying to confuse and humiliate a protester by this left-field out-of-the-box notion that white phosphorous could be used in toothpaste I was immediately reminded of O’Brien from 1984. If you recall, there is a point where Winston Smith is struggling with the way that O’Brien combines a great facility of mind at one point and a subhuman stupidity and obtuseness at others. Of course, by the end Smith understands the truth. When you are truly powerful there is no such thing as being stupid; there is no such thing as being wrong.
Hail to Thee, Oh Mighty One,
Kieran Kelly

Re: Why Do I Love You So?
To Adrian Orr,
I think that I have made it absolutely clear how much I admire you, but if I was to be honest I also hate you. I hate the fact that you came from a humble background. I can’t help it if my parents were intelligent. I would love to have been raised by a junkie single-mum sucking at the government teat just so I could prove that I was made for better things.
What makes me most jealous, though, is the fact that you can say things that I can’t. People like you don’t have to mince words about society’s losers. You are the Novus Homo – the New Man – like the renowned Cicero. He was the greatest defender of a system that was basically a meritocracy – well, it was certainly better than letting the stinking mob spread chaos and destroy all that was great about Rome. I see you in that light, as a type of neo-Optimate, but instead of defending Patrician power you are defending something even more noble – the power of the market.
When you finally lost your cool with the pro-Palestine protesters and sneered. “I can identify lots of companies that annoy me in life”, you were actually making a very principled point. I know it came across a bit like you were just being an arrogant arsehole, but the fact is that we can’t attack successful companies just because we don’t like them. Everything that is great and good about our society comes from the success of companies whose very success comes from supplying demand. We can’t pick and choose what we personally like instead of heeding market demand because, as Friedrich Hayek points out, that is the Road to Serfdom. Some people might have some sort of political view about creating munitions that incinerate people, but if there is a market demand we can’t ignore it. If people are willing to spend real money to burn other people, then denying them would be very distorting and dangerous. In fact, Hayek says that if we do that we will all end up as slaves living in a Totalitarian nightmare eating algae and wearing unisex overalls. I can’t quite remember his exact argument, but he was a respected economist and Thatcher loved his book so it is definitely real economics and not a lunatic tract for moronic ideologues.
Peace. Out.
Kieran Kelly
P.S. Of course, our own JK is another Novus Homo, isn’t he? However, I must admit I don’t really see him as being in the mold of the great Cicero. He has the passion, but not the diction. It does make me think of another Roman orator though – Cato the Elder. He is still remembered today for earnestly crying out “Carthago delenda est!” whenever he could get away with it. I reckon that if the Right Honourable Member himself is concerned with his legacy he should take a page from Cato. Instead of fussing around with this flag nonsense he should make it his unerring habit to end his every utterance in parliament by yelling “Get some guts!” That way, he would definitely be assured of a place in the history books. He would probably get on John Oliver’s show again too, and that exposure is great for brand “New Zealand”.

Re: And another thing…
To Adrian Orr
And the other thing about you bootstrapped peasants is that you have a lot of privileges that are not available to people like me. As I said, I can’t help the fact that my parents were not stupid losers working as toilet cleaners, or stablehands, or whatever it is that feeble-minded plebs can manage without chopping their own hands off. (Incidentally why do we have to pay ACC levies to compensate those who are too stupid to do menial tasks without mutilating themselves? Why do people seem unable to grasp the fact that this creates incentives for people to maim themselves? Has this world gone completely mad?)
I give you full credit for pulling yourself from the festering swamp of drooling inbreds that we know fondly as the “Great Unwashed”. Bravo, and all that, but now that you have scaled to the heights of fully-evolved sapience (and hopefully kicked the habit of grooming your relatives looking for juicy lice to eat); now that you are arrivé, as it were, you have that great privilege that I mentioned in my earlier missive. Your lowly origins mean that you can speak your mind where I can not.
For me life is a minefield. There are so many things on which I cannot voice an honest opinion without being accused of being worse than Hitler, and that is only the half of it! I cannot even point out simple matters of fact without being accused of being a privileged rich white man. Talk about ad hominem album!
That is why I was frustrated watching you talk to those screeching busybodies that were trespassing in your office building. We both know that they don’t really give a toss about the Hamas-loving hummous-eaters they claim to care about. They are just doing this to pad their resumés with “activism” so they can get into lefty politics and then hop aboard the UN gravy train like Aunty Helen. But these Arabs, these so-called “Palestinians”, in Gaza are not like Giant Pandas or Sirocco the Kakapo. People want to save cuddly nice charismatic deserving creatures, but you could have completely queered their sales pitch by telling some home truths about the so-called human beings whom they paint as being victims.
Did you know, for example, that 40% of the Gazans who can work don’t even have a job! Even most of those who do have a job take handouts from UN and NGO “benefactors”. Imagine that: a whole cramped little territory of hundreds of thousands of bludgers sticking their hands out. (That is what we will have here in our own country if we keep rewarding people for sitting on their arses and being poor). And half of the houses in Gaza are rubble, but even though they don’t have any jobs they still don’t rebuild them! They just sit around waiting for someone else to build everything for them. And with your humble background you can say this sort of thing. You can say, and it is just a simple fact, that we cannot support these people forever. The kindest thing is to just let nature take its course, or even to act to shorten the suffering of these miserable souls. It is pure undeniable fact, but when I say it, people call me a monster. I don’t think they understand how much that hurts my feelings.
Live Long and Prosper,
Kieran Kelly.

The ICC Will Only Hurt the Palestinian People, Part 1: Brer Bibi’s Briar Patch


Part 2

I was bred and born in the briar patch, Brer Fox,” he called. “Born and bred in the briar patch.”

And Brer Rabbit skipped away as merry as a cricket while Brer Fox ground his teeth in rage and went home. – “Brer Rabbit and the Tar Baby” retold by S.E. Schlosser.

I had hoped to be writing of his legacy, but sadly Binyamin Netanyahu is here to stay. Nevertheless, one thing is clear even from the flip-flopping Israeli premier, and that is his strenuous objection to Palestinian accession to the Rome Statute – the treaty governing the International Criminal Court. But all is not as it seems. The ICC is no real threat to Israel, nor its occupation, nor its illegal settlements and creeping annexation, nor the slow genocide of the Palestinian people. Bibi is playing the role of Brer Rabbit – “Please don’t throw us in the ICC briar patch” – safe in the knowledge that the only people likely to be hurt by ICC thorns are the Palestinians.

A Move Against Israel?

Both Hamas and the Palestinian Authority have supported Palestine signing the Rome Statute – a treaty which will make Palestine subject to the International Criminal Court (ICC). This is part of a tactic to establish statehood for Palestine be the establishment of de facto state credentials within multilateral institutions.

I am unsure what sort of fantasy land people inhabit, but supporters of Palestine seem, on this issue, to have decided that black is white and up is down. Their positivity relies on the potential for the ICC to become something which it currently is not, and the potential for Palestine to make use of this future development in some way which would currently be symbolic but somehow maybe might someday be more than symbolic in some manner that we cannot yet foresee. On the negative side of the equation we have the immediate reality that Palestinians are now subject to prosecution by the ICC and Israelis are not.

Just to make sure you get that: becoming signatories to the ICC means that Palestinians are subject to prosecution, not Israelis.

Yet Netanyahu and the US State Department are acting as if Palestinian accession to the Rome Statute were a move against Israel. It can only mean that Israeli and US leaders are deliberately objecting to the Palestine ICC membership as a way of giving credibility to a move which might otherwise greatly alarm supporters of Palestine. Netanyahu is trying to make us all think the the ICC briar patch is his greatest fear, but the ICC is certain to work against Palestinian interests. As I will detail below, the ICC is a tool of neocolonial oppression by design; it will embed a double standard which favours the powerful over the powerless in general, and Israel over Palestine in particular; it will fuel Israel’s self-justifying claims of persecution; and will continue the ongoing imperialist work of undermining the sovereignty of all nations which defy Western domination.

The (New) Scramble for Africa

The ICC throughout its existence has been a political tool of neocolonial oppression aimed specifically at the former colonies in sub-Saharan Africa. 60% of its funding comes from Britain, France, Germany, Italy and Spain, the former colonial powers in Africa. Naturally this gives them considerable control over the Court, but it is also under the direction of the United Nations Security Council (UNSC). Of the 5 permanent UNSC members two have themselves signed and ratified the Rome statute – the UK and France. Between them the British and French empires once ruled half of Africa, with Britain additionally exerting informal hegemony over other areas such as the Belgian Congo.

Normally even critics of the ICC acknowledge the “noble” sentiments and hopes with which the ICC was launched in 2002. I believe that to be a load of crap. The people behind the ICC are not noble at all. Anyone can fall to ignorance or false hope, but those actually involved are highly privileged elitists whose self-deception is only exceeded by self-righteousness, self-regard and self-congratulatory selfies. That may seem harsh, but my condemnation is not gratuitous, as I will explain later.

All 36 indictments issued by the ICC have been against Africans. People act as if its record thus far is some unfortunate aberration which will be rectified, but the politicisation is systemic. David Hoile has written an large comprehensive volume (Justice Denied: The Reality of the International Criminal Court) detailing things that are wrong with the ICC. I cannot do justice – so to speak – to this work, but here is a small sample from the introduction:

The court has claimed to be “economical”, yet it has cost close to a billion euros to conclude one deeply flawed trial. … The court has claimed to bring “swift justice” but it took several years to bring the first accused to trial for allegedly using child soldiers. … The court claims to be fighting impunity, yet it has afforded de facto impunity to several serial abusers of human rights who happen to be friends of the EU and the USA, and granted de jure immunity to non-member states such as the USA.

In the ICC, one has a court whose judges are appointed not because they are the best legal minds in the world, but because of squalid vote trading. Some are appointed because it is a cosy retirement job; some are washed-up politicians; some are diplomats; some use the court as a waiting room before greater things; others are appointed because their governments pay the ICC a lot of money; and some don’t even bother to show up for work because something better came along. We have judges making critical rulings on very difficult issues of law who have never been lawyers, let alone judges. We have judges who have pressed for legal indictments on the basis of what they have seen on CNN. We have judges who cite classical Greek mythology to justify prolonging Africa’s civil wars rather than to put peace before selectively retributive European law. We have judges who are political activists with little practical experience beyond abstract sloganising. And we have judges who have taught law in classrooms without any courtroom experience whatsoever.

The ICC has produced witnesses in several trials who recanted their testimony when in the witness box, admitting that they were coached by non-governmental organisations as to what false statements to make. We have seen prosecutorial decisions that should have ended any fair trial because they compromised the integrity of any subsequent process. We have seen trials stopped because of judicial decisions to add new charges halfway through proceedings. And most telling of all, the court brought into being in 2002 to punish the most serious crimes in the world, the most grave of which being waging a war of aggression, has consciously avoided meaningfully addressing aggression – managing to postpone any action for at least another decade. It has turned a blind eye to the invasion and occupation of both Iraq and Afghanistan by Western military forces.

It certainly can be argued that there are plenty of indictable people in Africa, but indictability is not guilt. We tend to think that prosecutions of African “war criminals” are justified by the inevitability of their guilt, but these are political actors, and politics distorts narratives. What is more, evidence of guilt seems far less relevant to ICC decisions than political concerns. In global terms the cases pursued are not in any way the most urgent in terms of the gravity of the accusations nor the weight of evidence. For example, though it is difficult to summarise, the situation with regard to Kenya makes it very clear that ICC personnel are willing to act with shameless disregard for real issues of justice.

After elections in 2007 Kenya was wracked with communal violence. An estimate 1300 people were killed. The loser of the election was Raila Odinga. He disputed the election and violence followed. Most of the victims were supporters of his opponent. Raila Odinga is the most prominently pro-Western leader in Kenya – a supporter of neoliberalism and foreign investment. It was very clearly Raila’s claims of election fraud which triggered the violence, and I will repeat here most of the victims were supporters of Raila’s opponent. Despite this, the ICC has charged members of both sides as they were at the time. The indicted are charged with being indirect co-conspirators by having organised networks in advance which committed ethnic violence and retaliatory ethnic violence. Raila is not charged with anything.

The narrative that ICC prosecutors are trying to present, then, is that each side had conspired to bring about these acts of violence beforehand. So, for example, Uhuru Kenyatta is accused of having met with others to conspire to commit violence, but the violence was triggered by his political enemy, initiated by followers of his political enemy and was mostly carried out against those perceived as his political supporters. He is alleged to have paid and directed members of the Mau Mau inspired Mungiki – an organised criminal militia/gang which is normally a bitter and deadly enemy of the government – to commit retaliatory violence after the anti-Kikuyu violence begun by the election result. He is alleged to have coordinated police actions to give Mungiki the freedom to carry out the violence. When the a pre-trial Judge summarise the allegations in his dissenting opinion, they sounded rather far-fetched. According to David Hiole, the original key witness against Uhuru recanted, reportedly in early 2009, leaving only those who corroborate a story told by someone who no longer claims it is true. Nothing in the remaining testimony in any way indicates what Uhuru Kenyatta might have hoped to gain by organising mass murder, rape and ethnic cleansing.

You might ask why Uhuru Kenyatta doesn’t just let the case go to trial, if it is so thin. One reason is that since being indicted Uhuru has been elected President of Kenya. It seems that a lot of people in Kenya were of the opinion that the ICC indictments were a political attack against opponents of Western interests and enemies of pro-Western Raila Odinga. Hoile quotes a Chatham House report suggesting that people believe that even the indicted political allies of Raila were, in fact, more rivals than allies. One defected and became Uhuru’s running mate in 2013 despite the ICC allegation that they were engaged in opposing conspiracies of ethnic violence. Both Western interference and the political nature of the ICC charges were more or less confirmed by the reaction of the EU and the US to the growing popularity of Uhuru in as the 2013 elections approached. Individually a number of EU nations threatened diplomatic and economic consequences should Kenyatta be elected. More jaw-dropping, though, was the extremely unsubtle threat that US Ambassador Johnnie Carson made in public by repeatedly telling the Kenyan people they faced “consequences” depending on the way they chose to vote in the election. This is from the representative of a country that passed the American Service-Members’ Protection Act for the explicit purpose of preventing its own citizens from being held accountable for their incredibly large numbers of easily proven war crimes.

The other reason that Uhuru Kenyatta might want to avoid a trial is the legendary slow pace of the ICC. Jean-Pierre Bemba has been in custody for 7 years and he has still never been convicted. Now information has surfaced that members of his defence team have been harassed and interfered with.

Remember that a criminal court is supposed to either prove guilt beyond a reasonable doubt or acquit. The ICC is supposed to afford a presumption of innocence before conviction. In what universe, then, is it considered just to imprison an accused man for 7 years whilst trying to cobble together enough evidence to secure a conviction? Bemba may not actually be innocent, but justice requires that he either be convicted in reasonable time or be released.

To summarise, ICC proponents might see themselves as shining white knights, but everything that the ICC has done thus far has been squalid and foul. Whether or not the given accused are guilty, these are show trials made into grotesque parody by the fact that the lead actors are too stupid to understand the role they are playing. The ICC is the progeny of the equally execrable pantomimes of power that occurred at the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR). You can read more about that here.

Embedding Double Standards and Injustice

I used to work at a stall in a local market that was occasionally frequented by the former Prime Minister of my country, the Right Honourable Geoffrey Palmer QC, and I have often fantasised about what I might say to him in the entirely plausible event that I am able to address him. It is possible that I would use rude words because Palmer was the Chair of the 2010 inquiry by the UN into the Mavi Marmara incident.

The “Palmer Report” was a travesty. As Richard Falk explained, Palmer was not particularly knowledgeable about either the international law of the sea or the law of war. And incredibly, the only other independent member of the Panel was Alvaro Uribe, the former President of Colombia, with no professional credentials relevant to the issues under consideration, and notorious both for his horrible human rights record while holding office and forging intimate ties with Israel by way of arms purchases and diplomatic cooperation that was acknowledged by ‘The Light Unto The Nations’ award given by the American Jewish Committee that should have been sufficient by itself to cast doubt on his suitability for this appointment. His presence on the panel compromised the integrity of the process, and made one wonder how could such an appointment can be explained, let alone justified.”

The Palmer Report found that Israel used excessive force, but that its blockade was legal. However, in point of fact it was not really an investigation but rather a PR exercise that was a predetermined endorsement of Israel’s blockade of Gaza in particular and its occupation of Palestine in general. The terms of reference excluded the overall legality of the occupation and thus made it inevitable that the blockade of Gaza, an intrinsic part of the occupation, would be deemed legal. By analogy, if a bank robber shot someone during a robbery you wouldn’t accept a plea of self-defence on the basis that the victim lunged and caused the robber genuine fear. You can’t refuse to examine the context of the greater crime and make reasonable judgements. The fact that the shooter is robbing the bank cannot be excluded from consideration.

Let us be quite clear, accepting Israel’s claimed right to intercept the Mavi Marmara is much more insane than accepting a self-defence plea from someone who murders a hostage in a bank robbery. For a start it would mean that Israeli officials had reasonable cause to believe that there were weapons aboard the vessel. But the flotilla of the Mavi Marmara was an extremely public action, not a weapons smuggling operation. Israel’s rationale for its blockade is self-defence, but it doesn’t show any way in which this is linked to the interception of the flotilla. Israel does make claims about small arms and “paramilitary equipment”, but they are less to justify the raid itself than to justify the deadly violence.

The fact is that Israel claimed that this was a deliberate provocation aiming at destroying the blockade, but if Israel’s justification of the blockade is self-defence it cannot claim the right to enforce the blockade against vessels which it does not suspect of carrying weapons shipments. As it happens Israel cannot even legally invoke self-defence until it has ended its occupation – another factor conveniently overlooked by top legal thinkers like Palmer. I have previously described the limits on self-defence claims:

Israel claims the right of self-defence, but what does Article 51 of the UN Charter actually authorise? “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” Well, the UNSC has indeed been apprised of this situation and has passed resolutions to restore international peace and security, but Israel will not comply with those resolutions. In order to claim the right of self-defence Israel would first have to relinquish all occupied territories, among other things. And that is a normal established understanding. An occupying force does not have a right to self-defence. Nor is it permissible to blockade a country and then “defend” against their armed resistance to that blockade. If these things were not true then you would have a situation where both sides can claim self-defence with each supposedly defending against the other’s defence.

The fact that Israel is using force to prevent humanitarian aid encapsulates the fact that the blockade is an illegitimate act of aggression which, in turn, gives legitimacy to armed resistance by Palestinians. You cannot judge the actions of any party in a conflict without examining the legal context of that conflict – or you end up spouting irrational victim-blaming nonsense like the Palmer Report.

Everything that applies to the Palmer Report in this regard also applies to the Goldstone Report. Law dealing with the legality of a conflict is called jus ad bellum, whilst law dealing with the legality of conduct during conflict is called jus in bello. By only dealing with jus in bello questions we end up in a morass of illogic, but we also inevitably privilege the most powerful party and the aggressor in any conflict as well as disadvantaging the party whose territory is the site of the conflict.

But jus ad bellum matters cannot be ignored. They are fundamental. People have a right to life and it does not just disappear because there is a war on. It is not legitimate to kill people in war, rather the illegitimacy and the criminal culpability are, all things being equal, located with the aggressor. The personnel that actually commit acts of violence are allowed to do so on two grounds, one is that there is reciprocal risk faced by belligerent personnel, and the other is that criminal responsibility for causing violent death and destruction lies with the aggressor.

This raises a side matter which is very relevant to the moral legitimacy of Israel’s state violence against Palestinians: Sebastian Kaempf argues that the moral legitimacy of the use of violence by combatants has been disintegrated by the asymmetry that exists in current warfare. The moral justification which allows a soldier to kill is based on reciprocal risk between belligerent personnel. One might argue that at least morally, and possibly legally, someone who is engaged in risk-free killing is not a “combatant” by any reasonable understanding of the term “combat”. A related legal question is whether UAV operators or even Special Forces personnel are entitled to “combatant privilege”, which is the legal basis for their violence and destruction. It was arguably stretched by powerful artillery and aircraft, but it is comprehensively broken by the one-sided and very low risk warfare engaged in by the US. This is especially so in the case of drones, but it is also true of helicopter gunships such as this one: or the Collateral Murder video; or the sequence at the end of Fallujah: The Hidden Massacre.

The technology allows US personnel to commit distant leisurely cold-blooded precision killing of people who have no chance of striking back and no chance of escape. Two of this videos show the deliberate murder of wounded people, but all of the victims here are effectively hors de combat. One might argue that these are war crimes on those grounds. Killing unarmed wounded people is definitely a war crime. Killing people on suspicion of being engaged in insurgent activity is murder in any respect. And when insurgents attempted to surrender to personnel in an Apache gunship, the crew were ordered to murder them an the ground that they were not allowed to surrender to airborne personnel – a crystal-clear example of a war crime.

Israel’s attacks on Palestinians fall into the same category. The moral justification for armed violence is destroyed by the disparity of risks, notwithstanding the number of fatalities sustained by the Israeli occupation forces. In addition the actual applications of force against alleged combatants become either arguably or inarguably criminal acts in and of themselves due to the incapacity of the victims. Also there is a prohibition on placing civilians at risk in order to reduce risk to your own personnel. We are aware of this with regard to the use of “human shields”, but it also applies to airstrikes which kill civilians in order to reduce risks to combatants.

Supreme Crime

The Nürnberg (Nuremberg) Tribunal ruled “to initiate a war of aggression…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.” This suited the victorious Allies, of course, but it also means that the law relating to war can be reconciled with the fundamental right to life. Anything else would mean that when if anyone rich or powerful enough to start a war decides that their ends are best served by war, then ordinary people’s lives are simply forfeit – to be taken without any repercussions. Wars kill people therefore, unless you think that the powerful have the self-arrogated right to take lives “for reasons of state”, wars must be illegal.

People seem to think that war is somehow morally distanced from the individual acts of violence which occur in war. We seem to have forgotten the lessons learned from German aggression and we have slid back into voluntarily abdicating our morality in favour of allowing authorities to make such decisions for us. We just follow orders.

A case in point is the ruling by judge Anne Mactavish [sic] in Canada against the application for refugee status by US deserter Jeremy Hinzman. “An individual must be involved at the policy-making level to be culpable for a crime against peace … the ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict,” Mactavish wrote in her 2006 decision. “Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper.” This is directly contrary to the spirit of two the Nuremberg principles. She is basically saying that she is happy if he is coerced into committing violent crimes because he himself will not be prosecuted.

If the war wasn’t clearly illegal Mactavish would probably have cited arguments for its legality rather than ruling that legality irrelevant. Iraqis have the legal right to resist aggression and occupation and those who do so have a right to life. Mactavish is revealing that she doesn’t really care about the deaths of Iraqi combatants. These combatants are innocent as much as any non-combatant is innocent. They are engaging in legally sanctioned armed resistance. They are human beings whose nervous systems transmit pain as much as a civilians; who feel the same fear and grief; and who will be mourned as deeply. As far as I can ascertain, at base the only reason Mactavish doesn’t take this view is that she is a disgusting racist who has embraced the dehumanisation of any Arab who resists Western power. You cannot think the way she does without being a racist bigot at some fundamental level.

Naturally, this all relates to the situation in Palestine. The UN Partition Plan of 1947 was of highly dubious legality under the UN Charter itself. The subsequent ethnic cleansing and confiscations of Palestinian property during the Nakba were crimes against humanity. The Israeli occupation of the remainder of Palestine in 1967 is very clearly illegal. UNSC resolutions 242, 338, 446 reaffirm the patent illegality. As mentioned above, under this circumstance Israel’s only legitimate form of self-defence, under UN Charter Art. 51, is to first comply with the UNSC resolutions and end the occupation. The continuing occupation involves continual armed violence as well as other acts which fit the category of acts of war – to the extent that the term still has meaning – or crimes against the peace.

What this means is that armed violence by Palestinian resistance fighters is legally legitimate. They have what is called “combatant privilege”. They are legally allowed to kill people within the limits of International Humanitarian Law (IHL). (This is the jus in bello component which makes it illegal for combatants to target non-combatants and other such things.) The “combatant privilege” allows combatants to legally kill – not because the lives of those they kill are not afforded any protection under the law, but because the criminal culpability for any killing lies with the aggressor, not the specific combatant who physically carries out the act of killing.

Combatant’s privilege, by the way, does not require that the combatant be a uniformed regular in a state military branch. The requirements are: “(1) operating under military command; (2) wearing a fixed distinctive sign (or uniform for regulars); (3) carrying arms openly; and most important, (4) conducting military operations consistently with the laws and customs of war.” State belligerents always deny the applicability of combatants privilege to non-state resistance forces. The German did for the “Resistance” in Western and Northern Europe as much as they did for the “Partisans” in Eastern and Southern Europe. The British denied combatant status to anti-colonial rebels like the“Mau Mau” and far too many others to mention. At the turn of the 20th century erstwhile allies of the US in Cuba and the Phillippines became unlawful combatants. So too did erstwhile allies in the fight against Fascism after the end of WWII in Greece, Viet Nam, Phillippines (again), Indonesia, Korea, and Malaya. More recently, of course, the US has famously declared many more of its enemies to be “unlawful combatants”.

Both in history and in our own times, the only reason to deny combatant status en masse is in order to commit war crimes. Those declared “unlawful combatants” are subject to torture and summary execution in every historical instance. For example, one might argue that ISIS/Daesh personnel are not legal combatants, but what would be the practical purpose? A robust moral stance would be to treat captives as prisoners of war until the cessation of hostilities. After hostilities have ended it would be possible to charge them as criminals using normal legal proceedings. The only other legitimate approach would be to treat each suspect as a criminal suspect from the outset and accord them rights, such as habeus corpus, on those grounds. The only reason for conflating the ideas of criminality and combatancy, as the US does, is as a way of denying and circumvention human rights in order to commit atrocities.

It is true that a combatant who deliberately disguises their combatant status by feigning non-combatancy forfeits combatant privilege as such, but that does not mean that one can simply deny the right of armed resistance to those who cannot form regular military units. If people have the right to self-defence from foreign aggression and occupation that means that they have the right to armed resistance. That cannot legitimately be restricted in such a way that prevents the victim of aggression from resisting because they do not have the material capacity to fulfill certain predetermined criteria.

The right for irregular guerrilla forces to be considered combatants has been established clearly and indisputably, albeit against the wishes of the late nineteenth century Western imperial “Great Powers”. The response by the “Great Powers” then or now is to accuse their weaker opponents of hiding behind civilians. Whether it was the Prussians accusing the franc-tireurs or colonial regimes such as the French in Alegria, such accusations serve a dual purpose. The first is to delegitimise the armed resistance in order to use judicial and extrajudicial acts of incarceration, torture, maiming and execution. The second is to legitimise their own attacks on civilians. This itself works on two levels: suggesting that military necessity (namely, legitimate attacks on armed targets) requires the targeting of civilians who become “collateral damage” in a legitimate military endeavour; but at the same time the second element is to produce a schizophrenic ideological discourse which destroys the distinction between combatant and non-combatant. This is a technique, or a symptom, of genocide. Violence is inflicted on the target population by blurring combatant and non-combatant status and creating in people’s minds the vision of a weaponised people. But don’t take my word for it, this is what Adolf Hitler said: “This partisan war has its advantages as well. It gives us the opportunity to stamp out everything that stands against us.”

Israel frequently claims that its enemies hide among civilians. This is an excuse for killing civilians, but they also know that they must continue at all costs maintaining the international consensus that armed actions by Palestinian formations (“militants”) do not have the foundational legitimacy of military operations. Ironically, however, it is powerful militarised states like Israel and the US whose personnel may not have legitimate combatant privilege. In a journal article that complements Sabastian Kaempf’s reasoning on reciprocity of risk, international law scholar Jens David Ohlin argues that whether uniformed or not both drone operators and special forces personnel do not meet the requirements of lawful combatancy. There is nothing that prevents this logic being applied to any personnel, including ordinary grunts, engaged in a mission which is not that of a lawful combatant. In refusing to treat enemies as combatants, powerful states are themselves increasingly embracing paradigms of violent force that are morally and legally equivalent to paramilitary death squad activity.

All of this is outside of the jurisdiction of the ICC. Aggression was one of the four types of crime outlined in the Rome Statute, but it was undefined and hence outside of consideration. An amendment addressing this will come into force in 2017, but it must be individually ratified by each state.

But even if they can prosecute the crime of aggression the entire setup will militate against justice and will always favour the powerful against the weak. Aggression will not now become the missing context, but will rather just be another potential crime for Third World citizens to be charged with. The very nature of this criminal court is to pluck certain selected villains from immense complex and multifariously criminal circumstances of mass violence and to charge them in isolation from the masses. Of necessity this will always be a political process, even more so than ad hoc tribunals. In theory ad hoc tribunals such as the ICTY or ICTR could treat all belligerent parties even-handedly. They don’t, of course, but the ICC cannot in any conception be even-handed in its approach.

With jurisdiction over nearly half of the world’s war crimes, crimes against humanity and genocides prosecutions by the ICC are inevitably political. These are show trials and they fuel the Hitler-of-the-Month-Club demonisation of Third World leaders that forms the backbone of Western interventionist propaganda. That is true of the entire process even if a case never goes to trial or if the defendant is acquitted.

Can you imagine how much mileage the US State Dept. and the Israeli hasbara (propaganda) agents would get out an ICC indictment for, say, Khaled Mashal from Hamas? They would milk it for all its worth and that would be to the detriment of every single Palestinian alive, even those who despise Mashal. The ICC will help Israel justify killing Palestinians because it will help replace the image of a people with the image of a single demon, and when you want to conduct a war against a people, which is to say genocide, it is very useful to convince your own people that you are fighting a single tyrant.

Israeli Impunity, Palestinian Punition

By practicing its pious “end of impunity” criminal prosecutions the ICC ignores the context questions such as which belligerent is the aggressor and who is a legal combatant. Instead, its real contextualisation comes from the politics of neocolonialism. Theoretically these questions should not have much impact on the question of guilt or innocence in war crimes. Jus in bello applies to all combatants, right?

Actually, not right. The Nürnberg Tribunal ruled that Russian partisans, as resistance to aggression, could not be tried for war crimes. This has been an issue right up until 2010 when Latvia successfully appealed a prior European Court of Human Rights ruling which had ruled against their conviction of a Soviet partisan for a 1944 war crime.

I am not going to argue that armies of “liberators” should be able to commit mass murder, mass rape and war crimes with impunity. The law must reflect basic principles such as legal equality – even to victims of “liberators”. International humanitarian law precedes the Nürnberg Tribunal and has been developed and elaborated since. As far as I am concerned the mass rapes committed by the Red Army in 1945 were war crimes and many of the “strategic bombing” missions undertaken by the Western Allies were acts of mass murder.

When you are dealing with forces of resistance not recognised as combatants by the aggressor/occupier, the moral situation changes. For one thing, to immunise them from war crimes prosecutions is not to grant them impunity. If they are adjudged unlawful combatants by the occupier, by nature the more powerful belligerent, they are subject to all of those judicial or extrajudicial hazards outlined above – incarceration, torture, maiming and death. They have no impunity and even their friends, family and community may be at risk from retaliation, collective punishment or the violent technologies employed in extrajudicial executions.

Failure to treat resistors as lawful combatants highlights a certain moral coherence to the idea that it is the aggressor/occupier that is culpable for their war crimes. Legitimate acts of resistance are treated as crimes by the occupier which effectively destroys the rule of law with regards to war crimes. That does not mean that they cannot be culpable for some criminal acts, but they did not create the circumstances which prompted them. A court cannot ethically judge them if it does not seek to prosecute those responsible for the aggression. In that sense the principle that aggression is the “supreme crime” makes considerable sense.

The culpability of the aggressor for the war crime committed by the resistor is actually morally greater than that of the resistor because it is unmitigated – the original act which created the circumstances of the resistors crime was itself a crime. Once again we can use the analogy of an armed bank robbery with hostages acting in lawful self-defence but committing acts which are themselves crimes. Deliberately killing the child of the hostage taker is a crime, but if the robber has already killed 10 hostages by that point, the circumstance have a considerable bearing. It would be completely wrong to charge a hostage with murder but refuse to charge the robbers or consider the circumstances in which the crime was committed as relevant.

In fact, it is possible to argue that killing a child was justified and a court would would then decide whether, in the circumstances, that was “reasonable”. (I personally don’t think that in the real world it is ever reasonable to kill a child, but if you want to find people who do think it is reasonable the best places to look are not where slavering terrorists strap bombs to little girls but places like the White House where killing children is routine practice and they simply state that “the price is worth it”.)

Not only are basic legal principles important, but there is at least one part of international law that is even more fundamental than IHL, and that is the UN Charter. The ICC relies on the UN Charter for its authority. So does the UNSC. The UN Charter is fundamental to the notion that there is a modern international state system in which there is international law. People have described it as the global “constitution”. This is of considerable relevance to Palestinians because the ICC process will not put alleged crimes in that context.

For example, if people have a right to self-defence, then they must practically be allowed to exercise that right. A case in point is rocket fire from Gaza. It is not so much argued as screeched by Israel and their supporters that the rockets fired by Gazan militants into Israel violate the principle of discrimination which requires that combatants distinguish between military and civilian targets.

I want to look at the rocket fire issue from a couple of angles, but first let me remind people that it is a real possibility that this alleged war crime might be the cause of prosecutions. In our Orwellian world where “freedom” quite literally means “slavery” – as in Operation Iraqi Freedom and Operation Enduring Freedom – “resistance” also means “aggression”. Everyone’s favourite Peace Prize-winning older and larger brother (Obama) said the following about rockets from Gaza: “…we strongly condemn the continuing rocket fire into Israel and the deliberate targeting of civilians by terrorist organizations in Gaza. No country can accept rocket fire aimed at civilians, and we support Israel’s right to defend itself against these vicious attacks.” He knows, of course, that the rockets from Gaza did not actually “target” civilians and that the real accusation is that they were not accurate enough to discriminate between targets as required by law.

Obama has used a simple two-step rhetorical technique to invert reality. First he turns allegedly indiscriminate rocket fire into “targeting civilians”, which provides a 90º angle. Second, he states that Israel has a “right to defend itself” which implies that it was Gazan militants who fired first (a lie) and obfuscates the nature of Israel’s actions over the long term. That provides another 90 degrees. Voilá, we have now turned 180 degrees to enter Oppositeland, where black is white and truth is lie. Obama can only do this because the news media are subservient vacuous apparatchiks, but it also shows that he and the US establishment are committed and implacable enemies of the Palestinian people. At a time when most of the world watched in horror as Gazans were mutilated and slaughtered by the hundreds, Obama chose to attack them. He gave arms to Israel in the middle of the slaughter so that they could kill more.

Take time to think about what that means. As children were being dismembered and incinerated every single day, this man, Obama, deliberately twists the facts in a calculated way to make the victims seem then perpetrators and the perpetrators seem as victims.

Meanwhile, in the UK David Cameron remained a staunch supporter of “oasis of freedom” Israel. He spouted exactly the same line as Obama even when members of his own caucus and cabinet objected. These are the most powerful Western leaders, and they are quite happily prepared to cold-bloodedly attack Palestinians during a time of intense suffering. They weren’t forced into it by the “Israel Lobby”; they are not scared of Netanyahu; they do not love Netanyahu. Nor does this have anything to do with party politics. Blair and Bush would have done the same, and they were from the putatively opposing parties. They do it because they are cold-blooded mass-murdering imperialists whose geostrategic ends are furthered by the deaths and suffering of Palestinians – just as they were furthered by the deaths of Salvadorans, Laotians, Indonesians, Koreans, Vietnamese, Guatemalans, Philipinos, Eritreans, Congolese and many many more.

Ask yourself what these Western leaders are going to do with the fact that Palestinians will be subject to ICC prosecution. What I foresee is that the next time Israel wishes to commit a genocidal slaughter in Gaza, Palestinian leaders will now “investigated” for their “crimes” no matter what they actually do or don’t do. The ICC brush will tar the entire Palestinian people and the Western public will be forced once again into a discussion which begins with the vehement declaration that Israel clearly must respond to the acts of militants. The result will be that the only allowable criticism of Israel will be to censure them for not making their attacks on the besieged overpopulated Gaza strip a bit less massacre-ish.

In summary, the most powerful Western leaders have shown that they will attack the Palestinians at every turn, even at the height of their suffering. The only thing that holds them back is the weight of public opinion, and the ICC will give them opportunities to shift sympathies away from Palestinians and to further obscure the basic rights and wrongs of the issue. The way Obama used and shamelessly twisted the issue of rocket fire illustrates the problem.

But what else could be learnt from the issue of Gazan militants firing what, by all accounts, were very basic rockets? What if I were to return to the bank robbery analogy? Gazan rocket fire is equivalent here to throwing paperweights in the direction of armed robber from behind a desk when children might be hurt. The robbers have already killed and can be expected to kill again. A moral or legal justification that this is a reasonable act of self-defence would require that the risk to innocents is outweighed, in the judgement of those throwing the paperweights, by the potential prevention of violence by the robbers.

One might argue that throwing paperweights in morally unacceptable because the throwers have no substantive grounds for believing that they will disable or deter the attacks but might just as easily aggravate them and increase their violence. That is a very nice argument against acts of violence that can hurt innocents, and it happens to be how I feel about rocket fire from Gaza. But no one, including the “end of impunity” bureautwats, can justify contemplating the morality and legality of the paperweight throwers until they have judged and punished the robbers for their crimes, which include murder.

Once again we are confronted with the fact that by isolating alleged war crimes from their context, ICC proceeding could promote injustice, enable crimes and embed impunity. We should ask, what sort of mad world is it when we judge the victim of an attack on the legality of their acts of self-defence, but we don’t judge the attacker? Gazans are imprisoned by two US client states, the number one and number two recipients of US military aid. Their lives are not as desperate as those of Warsaw Ghetto inmates, but the sickening comparison is impossible to avoid. If we interfere in any way with their ability to defend themselves, even with acts that would otherwise be criminal, we risk becoming the moral equivalents of those who deported Jewish refugees to Axis controlled Europe and near-certain death. An entrapped people are attacked by a superior power with weapons that kill, maim, traumatise, brutalise and immiserate. When we prevent defensive acts on the basis that they are prohibited in IHL, if we do not know for certain that our interference does not interfere with their ability to defend themselves then we risk becoming a party to acts of aggression. That is another reason that the idea, from the Nürnberg Tribunal, of making the aggressor culpable for the criminal acts of the collective victim actually makes sense in the overall scheme of things.

The Privilege of Power

Judging war crimes only by their conduct without the jus ad bellum context provides an obvious advantage to the aggressor. Usually the aggressor is the more powerful belligerent and they are more likely to retain the initiative, control the tempo of the conflict and be able to conduct operations away from their own territory, people and assets. The aggressor has all of the advantages and, all things being equal, for equivalent war aims they have a much greater ability to achieve their desires whilst constraining personnel within the letter of the law. In practice aggressors may commit many war crimes, but I am trying to point out that this is despite a real situational advantage. They commit prolific war crimes only because their war aims are more extreme and are often inherently brutal, criminal and genocidal.

But the ICC may choose to ignore war crimes altogether and yet still acts as a weapon against the people of Palestine. As we have seen when acting as a neocolonial tool against African countries like Kenya, the ICC has preferred charges of crimes against humanity. This too creates an inherent bias in favour of the powerful over the weak. The ICC is tasked with only taking on cases where the state in question is “unable or unwilling” to prosecute.

For those willing but “unable” to prosecute their own genocidaires, war criminals, or criminals against humanity, there is a mechanism called “self-referral”. Anyone who has studied the history of international relations would predict that no state ever would actually say that they have a criminal suspect who they would like to prosecute for crimes committed in their country but are so pathetic and useless we can’t actually hold our own trial and theye need better richer whiter people to do the job for them. Yet these “self-referrals” do occur. David Hoile explains the phenomenon thus:

“The myth of African self-referrals is just that. It is public knowledge that the ICC Prosecutor Luis Ocampo made the governments of Uganda and DR Congo an offer they could not refuse: refer your countries to the ICC and we will only investigate your rebels; refuse and we will indict you as well.”

If you are a strong enough country you can defy the ICC, but if you are an enemy of the West, that very defiance is a weapon to be used against you. But a strong state that is allied to the West like Israel? Quite aside from the fact that Israel has not only refused to ratify the Rome Statute but, like the US, has also repudiated the initial signing of the treaty. More than that, however, the US State Department is quite satisfied when Israel investigates its own alleged war crimes and apparently that is more important to global officialdom than either public opinion or mere facts.

For example, after Operation Cast Lead Israel convicted two low-ranking soldiers of using a child as a human shield. They received suspended sentences of three months. This should have provoked screams of outrage that this stage-managed ersatz justice was far worse that doing nothing. Instead, the media printed the “reasoned” and respectable criticisms of people like Sarit Michaeli of B’Tselem: “Although individual soldiers do bear responsibility if they have violated rules, this has to be accompanied by systematic examination of issues of policy – such as what constitutes a legitimate target, open fire regulations, types of weapons used and the targeting of public buildings. The main issues of concern that we have raised have not been dealt with.” In other words, forget slavering passionately about evil “war criminals” (as we do about African suspects) these soldiers have quite correctly been disciplined for having “violated rules”, but we should also tweak Israeli policy somewhat. An incoherent scream of rage is actually a more coherent response than that.

To criticise the manner in which Israel judges its own actions normalises the idea that Israel should be left to police its own war crimes. People also seem to accept the idea that it is right for the US and the UK to choose who, if anyone, will be held accountable even when the crimes are committed in other countries. These countries then use the selective prosecutions of low-ranking personnel to create a false image of lawfulness.

Worse still, Israel has used the fact that it went through a judicial sham and conducted some supposed investigations to further criticise Hamas because they haven’t conducted their own prosecutions. This is another two-step inversion of reality. First, you get people to accept the idea that there is some moral equivalence in the illicit acts of aggressor and resistance forces – twisting the first 90º – then you get them to accept that your abysmally deficient scapegoating of junior personnel is some sort of robust corrective. After these two simple steps you hand rotated into Oppositeland and you may now safely blame and demonise the victim of your mass murder.

And when we envision the future impact of the ICC regime on Palestine we must not, under any circumstance, fail to take into account the power of the political discourse which seeks to make enemy states into appendages of a near omnipotent villainous leader. Every crime committed by personnel from a state deemed inimical to the West is blamed directly on the leader of that country. Bashar al-Assad drops barrel bombs on civilians; Omar Bashir commits genocide; Muammer Ghadaffi even committed the massacre of political prisoners in one of his prisons. Theirs are the fingers on the triggers.

Ordinary people may likewise think that Donald Rumsfeld should been tried for torture, or Tony Blair for crimes against peace, or Ariel Sharon for mass murder, or Henry Kissinger for genocide. People in officialdom, however, claim to have a superior understanding of politics and power and are ever willing to concede limits to justice where powerful Westerners are concerned.

Convicting a couple of rather amateur torturers from Abu Ghraib and a few Blackwater murderers makes the US feel like it is superior, lawful, legitimate and civilised. US political and military leaders go free and the bureaupratts, security geeks and self-described “wonks” sneer at the inferiority of those who don’t accept a priori that Western leaders are untouchable. With regard to Third World enemy states it is the exact opposite. These same “wonks” now salivate with strident bloodlust. Justice is now an absolute and they can never compromise. The snide bespectacled weeds are now transformed into blood-drenched muscular Conan-esque warriors meting out righteous violence. They cheered when Osama bin Laden was supposedly killed: “We’re number One!” They howled in triumph when Ghaddafi died in the most grotesquely cruel manner and Clinton crowed: “We came. We Saw. He died.”

Part 2