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Israel in the docks at the ICC- a not so distant possibility?

August 16, 2014 at 12:25 pm

Israel’s military offensive on Gaza has devastated the small coastal enclave. During the lull of hostilities, part of a recently extended ceasefire, the damage is being assessed and calls for justice are growing stronger.

Last week, Palestinian foreign minister Riad Malki visited The Hague, the seat of the International Criminal Court (ICC). Malki, told reporters that the visit was made in-order to discuss the implications of signing the Rome Statute. Signing the Rome Statute would make Palestine a member of the ICC with the authority to call for an investigation into possible war crimes and crimes against humanity committed by Israel.

Palestinian leaders attempted to bring Israel’s actions during “Operation Cast Lead” to the ICC in 2009 but the bid was refused by the then prosecutor Luis Moreno-Ocampo on the grounds that only states could do so and Palestine was not recognized as a state.

However, the United Nations General Assembly approved Palestine’s 2012 statehood bid, upgrading Palestine to a non-member observer state and therefor making it eligible to bring a case to the court. The chief prosecutor of the ICC, Fatou Bensouda, has stated that “the ball is now in the court of Palestine,” “Palestine has to come back” and “we are waiting for them.” The court can only deal with instances that happen after 2002, the year the ICC was born, but this still leaves many crimes to be investigated.

The statehood bid was met by fierce objections both from Israel, and long term ally, the United States. Prior to the vote of the UN General Assembly on the issue, Israel attempted to insert a condition that Palestine couldn’t become a member of the ICC.

Palestine was also pressured into promising not become a member during the 2013 peace negotiations. The ICC is a redline for Israel because its leaders are aware that they have committed acts that fall under the court’s jurisdiction. It is also a redline for the US who doesn’t want to see a “democratic” country in the docks- its conduct in Afghanistan or drone policy in Pakistan and Yemen could be questioned in the future.

Article 8 b (ix) of the Rome Statute- which outlines the crimes under the court’s jurisdiction, states that intentionally directing attacks against the civilian population and intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects…which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated, are war crimes.

Nearly 2,000 civilians have died since the start of “Operation Protective Edge.” Take for example the al-Hajj family. The suspected target, Yassir al-Hajj, a low rank Hamas member was not even home when an Israeli airstrike killed 8 members of his family- including 2 children. Even if Yassir had been present, his death would not have given Israel a “concrete and direct overall military advantage.”

The Israeli media has reported that the al-Hajj family were delivered a warning before their home was struck- that is a small missile very shortly before a much larger missile arrives. The 30 injured in the vicinity of the attack, had no warning. In the case of the Shujayea massacre which took the lives of over 60 Palestinians, justified by Israel through unproven claims that rockets were being fired from the village, again the Israeli authorities state that the residents were given adequate warning.

According to Human Rights Watch, while the laws of war encourage “advance, effective warnings” of attacks, the failure of civilians to abide by warnings does not make them lawful targets of attack, since many people do not flee because of infirmity, fear, lack of a place to go, or any number of other reasons.

The shelters in Gaza are overcrowded and are themselves a target- Israel shelled one United Nations Relief and Works Agency (UNRWA) school housing over 3,000 refugees despite being warned 17 times by the UN that civilians were inside.

Prior to this offensive, Israel has already been accused of war crimes. For example, the settlements industry involves the transfer of the occupying power’s own civilians into the occupied territory- this is a war crime.

Unfortunately the crime of aggression will not come into effect until 2017. This crime fills some of the gaps left in the war crimes definition and seems apt for the case of Palestine. The crime of aggression means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State. Blockading the ports, -+bombarding it and annexing sections of it all count as acts of aggression.

Despite such damning evidence, Palestinian leaders are holding back from the international justice route as a result of political pressure, and because by joining the court the Palestinian territories would automatically open themselves up for investigation. Hamas’ firing of rockets indiscriminately into Israeli cities and towns could also be considered a war crime under the Rome Statute.

Malki alluded to this after meeting with the prosecutor. “We want really to be assured that if we undertake that decision (for ICC membership), then all Palestinian factions adhere to that decision and know in advance its consequences and ramifications,” he said. Hamas has reportedly given their consent.

According to its architects, the objective of “Operation Protective Edge” was partly to destroy the “terror tunnels” leading from Gaza into Israel “proper”- which Israel has carefully framed as attempts by militants to target civilian areas. The use of human shields is considered a war crime, a claim Israel repeatedly uses to justify the high number of civilian deaths. Israel’s leaders will, as it has been doing, claim that the hospitals, villages and shelters that have been attacked were used by terrorists to launch rockets, and therefor became legitimate military targets.

Israel’s has worked hard to frame its military actions during the current hostilities as in line with the laws of war. However, the “terror tunnels” have only been used to target military personnel so far- legitimate targets in an armed conflict. On the human shields; Gaza is roughly a quarter the size of London and home to 1.8 million people, if Hamas does indeed fire from nearby civilian areas, there is very little space to do otherwise. Israel has repeatedly been accused of using Palestinians as human shields.

Unfortunately due to geopolitical control over the court’s prosecutorial decision making, the crimes of Hamas may be given priority. The war crimes tribunals that preceded the ICC have only prosecuted those who lose wars, typically run or influenced by those who won them and who own most of the power. The trial of Japanese leaders after WWII made no mention of the atomic bombs dropped over the Japanese cities of Hiroshima and Nagasaki. The ICC has also only had African leaders in its docks, from countries not described as “Western democracies”. If Palestine succeeds in bringing a successful case against Israel it will mark an important turning point in the history of international justice.

The threat of the ICC appears to be Palestine’s only trump card. Playing it will take it out of their hands. If they do, despite the political pressure urging them not to, let’s hope it doesn’t backfire and justice will be served to the millions of Palestinians who have endured decades of oppression.


The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.