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With a former ICC chief prosecutor advising Israel about evading international law, justice will remain elusive

December 22, 2015 at 12:04 pm

The Palestinian Authority has been celebrating its diplomatic efforts as a step towards achieving at least partial justice, particularly in seeking to hold Israel to account for war crimes at the International Criminal Court (ICC). The Israelis themselves, meanwhile, have been receiving advice from former ICC Chief Prosecutor Luis Moreno Ocampo on how to evade any possibility of facing such legal action. Justice, it seems, is going to remain elusive.

The basis for Israel’s impunity, consolidated by UN recognition and acceptance of settler-colonialism in Palestine, is now also set to be extended practically to the ICC, leaving Palestinians with little prospect for diplomatic engagement within the parameters imposed by international institutions.

The Jerusalem Post has published detailed comments by Ocampo with regard to Israel’s settlement expansion. Although refraining from endorsing any form of legality as regards settlements, the former ICC official has sought to influence perceptions as well as advice regarding the actual construction and existence of illegal settlements versus “criminal intent”, adding that “Israel’s High Court is highly respected internationally.” Thus, he gave the distinct impression that Israel can manipulate international law through “respect” and a competent defence that settlement construction is legal “once ratified by the country’s top court”.

Ocampo also advised that Israel should control the settlement debate by producing “twenty books on the issue” in order to dominate literature that, according to the ex-ICC prosecutor is “a completely new discussion with no previous law.” Israel was also advised to cooperate with ICC investigations, stating that while the UN General Assembly has condemned settlement activity, “[it] cannot force the prosecutor about how she interprets crimes.”

However, despite Ocampo’s attempts to differentiate between UN and ICC tactics, both depart from the same premise which legitimises Israel’s narrative from different angles. If the former prosecutor’s words retain any validity, ICC impunity for Israel would reflect the UN’s penchant for non-binding resolutions against Israel’s violations of international law.

PLO Executive Committee Member Dr Hanan Ashrawi refuted Ocampo’s statements. She insisted that international human rights law and international humanitarian law – citing the Rome Statute, the Fourth Geneva Convention and the ICJ Advisory Opinion regarding the Wall – have all deemed settlements to be illegal.

As Israel’s history has exhibited, however, the tendency of international institutions is to circumvent legislation in a manner that provides permanent impunity for the ongoing colonial project. The same attitude has been exhibited by Ocampo in his discussion of Israel’s military offensive “Operation Protective Edge” and the applicability of war crimes. Lengthy investigations and delays have also been addressed as working in Israel’s favour, with Ocampo declaring, “Bensouda [the current ICC chief prosecutor] would likely be patient as long as she believed the process was moving forward in good faith.”

Given that specific legislation has been manipulated constantly to shield Israel from accountability, a concept as ambiguous as “good faith” would likely be regarded as a multifaceted, convenient metaphor used as a reference in case of the slightest sign of revolt against the macabre oppression faced by Palestinians.

The ambiguous justification for colonial projects has many precedents and was manifested through the 1947 UN Partition Plan for Palestine. In the current context, despite Palestinian determination to pursue legal action through international avenues and hold Israel accountable for its crimes, it is likely that the ICC will adhere to the dominant narrative favouring Israel rather than set a new precedent that would signal a departure from its track record of selective prosecution.

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