British lawyer heading ICC’s Palestine probe can’t be seen as neutral

David Cronin 20 March 2024

Right-wing British lawyer Andrew Cayley. 

Khmer Rouge Tribunal

The British establishment cannot be treated as impartial on the Gaza genocide.

The current horrors constitute the latest episode in the subjugation of Palestinians.

The subjugation did not begin in October 2023 but rather in November 1917. During that month, Britain issued the Balfour Declaration, thereby becoming the imperial sponsor of the Zionist colonization project in Palestine.

Under that project, incoming settlers from Europe were accorded a far higher status than the indigenous Arab population.

The news that a British lawyer has been appointed head of the International Criminal Court’s Palestine investigation cannot be divorced from the Balfour Declaration. Far from repudiating that iniquitous document, the British elite expresses pride in it.

Andrew Cayley, the new chief of the ICC’s Palestine probe, is firmly ensconced in the British elite.

Cayley is a member of and a generous donor to the ruling Conservatives. Luminaries of that right-wing party include Arthur James Balfour, who (as foreign secretary in 1917) signed the declaration bearing his name.

While Cayley may claim to act independently of elected politicians, he has played a significant role in ensuring that the British state is not held accountable for its crimes.

From December 2013 until November 2020, Cayley was Britain’s military prosecutor.

Not long after taking up that post, Cayley gave an assurance that the authority “will not flinch” from bringing prosecutions over alleged war crimes in Iraq if there was sufficient evidence to do so.

With Cayley at the helm, the authority examined several thousand allegations against British troops who had participated in the invasion of Iraq. Not even one prosecution was initiated.

Despite the refusal to take action, Cayley’s work was deemed by the ICC not to have involved the shielding of criminals. The ICC decided against opening a full investigation of its own into the conduct of British troops.

In a 2022 interview with Counsel – a magazine for attorneys – Cayley hinted that he was lobbied heavily by the powers that be.

“There was a hell of a lot of pressure from different quarters and from the ICC,” he said. “The more liberal media wanted us to prosecute everyone; media outlets traditionally supporting the armed forces demanded we close the cases down.”

Suspicious

Cayley has been appointed to head the Palestine probe by his compatriot Karim Khan, the ICC’s chief prosecutor.

The ICC will not accept that putting a Briton in charge of the Palestine file is problematic. When I contacted the court asking why anyone concerned about the Palestine issue could have confidence in Cayley, the ICC failed to answer my question.

Instead of making any comment on Cayley himself, the ICC replied that Karim Khan’s office “rigorously follows its rules around impartiality and is led solely by the interest of justice.”

Khan has selected Brenda Hollis, a retired colonel with the US Air Force, as Cayley’s partner overseeing the Palestine probe.

The choice is suspicious given that America has never accepted the Rome Statute, the ICC’s founding charter. It is even more suspicious considering that the US is the main supplier of weapons which Israel is using to perpetrate the Gaza genocide.

Achieving justice for Palestinians is clearly not a priority for Khan.

In March 2023, he issued an arrest warrant for Vladimir Putin, the Russian president, over the invasion of Ukraine.

By contrast, he does not seem to be preparing “wanted” posters featuring Benjamin Netanyahu or other Israeli political and military figures. Last month, he merely noted that he had not seen “any discernible change in conduct by Israel” and warned that “those who do not comply with the law should not complain later” when his office takes action.

During a Middle East trip in December, Khan indicated that he would prefer to go after Palestinian resistance fighters.

By targeting the oppressed, rather than their oppressors, he may have revealed the ICC’s real agenda. Crimes by non-Russian white people do not seem to bother the court much, if at all.

The wars against Iraq and Afghanistan launched in the first few years of this century were both crimes against peace and thereby violated the principles established at the Nuremberg trials during the mid-1940s. Yet the ICC has rejected the idea that Britain and the US should be brought to book.

It may not be the first time that Andrew Cayley will be working within a structure where some of the world’s most notorious scoundrels get away scot free.

Before stepping down amid a 2013 financial dispute, he had been a prosecutor in the Khmer Rouge tribunal.

The boundaries of that UN-backed trial were carefully set so that Henry Kissinger never had to face justice for managing the carpet-bombing of Cambodia during the late 1960s and early 1970s (when he was America’s national security adviser and secretary of state).

That violence continues to claim victims through unexploded ordnance yet Kissinger died last year without ever being punished.

Israel’s wanton destruction in Gaza bears some similarities to what Kissinger inflicted on Cambodia.

The ICC’s behavior suggests its bosses would be happy for Netanyahu to evade justice in the way that Kissinger did.

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Comments

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Guy St Hilaire replied on

What could be more obvious than the saying "The fox watching the henhouse". The British administration should be ashamed of themselves to parade as custodians of justice.

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dennis hanna replied on

Balfour Correspondence and, ultimately, Balfour Declaration

Balfour Declaration of 1917

“His Majesty's government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.”

The Balfour Declaration was a public statement issued by the British government in 1917 during World War I announcing support for the establishment of a "national home for the Jewish people" in Palestine, then an Ottoman region with a small minority Jewish population.

Please note, the first draft of “a” letter was solicited from the World Zionist Federation of Great Britain and Ireland, the second draft of “a” letter was from Lord Rothschild, the third draft of “a” letter was from British Foreign Secretary Arthur Balfour. All three original drafts began with the words, “His Majesty's Government accepts the principle that Palestine should be reconstituted as the national home of the Jewish people ...”Only the fourth and fifth drafts and final “Declaration” began with the words, “His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people ...”
Alfred Milner, 1st Viscount Milner was responsible for the change from “... Palestine should be reconstituted as the national home of the Jewish people ...” to “... establishment in Palestine of a national home for the Jewish people ...”
Simply, the original intention was and the unstated actions of the British ruling elites and the British government always was for Palestine to be reconstituted as the national home of the Jewish people.
For Jews, and only Jews.
No more; no less.

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NN replied on

As for notorious Julia Sebutinde (now Vice-President of the ICJ), who voted obstinately against any measure in the South Africa vs. Israel case, here is an interesting series from "The Observer", Uganda. - She's deeply rooted in a zionist evangelical fringe cult.

Judge Sebutinde and the South Africa-Israel dispute
Written by Dr Busingye Kabumba
January 31, 2024
https://observer.ug/viewpoint/...

‘For the Bible tells me so’ - Judge Sebutinde & the S.Africa-Israel dispute: Part II
Written by Dr Busingye Kabumba
February 7, 2024
https://observer.ug/index.php/...

‘Obuntu Bulamu’and the ICJ: A final note on Judge Sebutinde
Written by Dr Busingye Kabumba
February 14, 2024
https://observer.ug/index.php/...

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David Archibald replied on

The Israel government has announced the further annexation of West bank territories. The tone clearly mimics the liebensraum propaganda of the third Reich. The right to annex sovereign land unto an invading colonial power on the basis of bronze age mythological ideas of ownership is surely the most appalling insult to intelligence in history. Surely the third Reich had more provenance to Poland than Jews have to the West bank...but that is the madness of this modern world any bs will do, any outrageous insult to intelligence is acceptable, if America wills it so.

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David Archibald replied on

These stiffs of the upper lip will tell you the most outrageous lies, for lies is all they learned in law school.
That is the British way.

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Ady Cheale replied on

All these bodies are pure theatre, designed to make it look like "democracy and justice" is at work.
I remember the Chilcot report and how the media went wild with adulation and proclamations of how wonderful it was etc. At the time the report was being made up, the UK bombed Libya. So much for wanting to know about how to learn from previous experiences. Chilcot achieved nothing. Nor will the ICC. Unless the people on trial are the wrong colour.

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Humberto de Toledo Câmara Neder replied on

Shame on the British administration for this nomination. It's the quintessential colonialist cover up of the most horrible war crimes perpetrated by the occupation army in Gaza!!!!!

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David Cronin

David Cronin's picture

David Cronin is an associate editor of The Electronic Intifada. His books include Balfour’s Shadow: A Century of British Support for Zionism and Israel and Europe’s Alliance with Israel: Aiding the Occupation.