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Will the ICC actually hold Israel to account over war crimes?

December 23, 2019 at 9:49 am

Building of the International Criminal Court, in Hague on 23 December 2019 [Wikipedia]

Why does Israel consider itself to be above the law? And why do supporters of the Zionist state look the other way when its war crimes raise their ugly head? Accusations followed by routine denials are the norm now that the International Criminal Court’s chief prosecutor has announced that she wants to open an investigation into charges of war crimes committed by Israel against Palestinians; the cyclical farce of denying not only the charges but also that the court has any jurisdiction continues.

Instead of trying to sweep the issue under the carpet, though, isn’t it time to listen to the evidence from Palestinians who have suffered under one of the most brutal military occupations of the past 100 years? They are, after all, entitled to the same human rights that those who defend Israel so vigorously take for granted, and what better way to prove this than through the ICC?

This also provides an opportunity for the ICC to boost its credibility and counter its critics, who say that it only goes after African dictators. Such criticism is levelled frequently at the international court, which has also been accused of turning a blind eye to Israel’s treatment of the Palestinians. Prosecutor Fatou Bensouda is now saying that “war crimes” had been or were being committed in the Israeli-occupied West Bank, East Jerusalem and Gaza Strip, and has asked for a ruling on the court’s territorial jurisdiction.

READ: Netanyahu accuses ICC of anti-Semitism in pursuit of war crimes probe 

The news will be greeted with grim satisfaction by the Palestinians who have pushed patiently for nearly five years for the ICC to examine their evidence. Predictably, Tel Aviv says the move is “baseless”, while under-fire Prime Minister Benjamin Netanyahu insists that the ICC has no jurisdiction over Israel and the occupied Palestinian territories, not least, he says, because there is no entity called the State of Palestine. He ignores the fact that 138 of the 193 UN member states recognise its existence. As Israeli intransigence grows, the Zionist state is digging itself a deeper hole that makes it increasingly difficult for all but its most fanatical supporters to defend it.

It is true that Israel has not signed the Rome Treaty and thus signed up to the ICC. To do so, claims Netanyahu, would make it possible for the court to be used as a political tool to delegitimise the Zionist state, but he would say that, wouldn’t he? Instead of being so defensive and draping itself in false victimhood, Israel would do well to take up the challenge of an ICC investigation. If its behaviour is indeed legitimate and above board, then surely it has nothing to fear from the international court.

However, the truth is that Israel is on very shaky ground, and Netanyahu knows this. Ever since it was created in 1948 by the ethnic cleansing of 750,000 Palestinians, Israel has subjected those who remained, and then from 1967 those who had fled to refugee camps in the West Bank and Gaza Strip, to brutal military rule, with war crimes and crimes against humanity a feature of everyday life for Palestinian men, women and children. These crimes have been well documented not only by Palestinians, but also observers from human rights groups both within and beyond Israel who have provided enough evidence for the ICC to open an investigation.

People hold Palestinian flags to protest against Israeli Prime Minister Benjamin Netanyahu in the West Bank on 28 September 2019 [Issam Rimawi/Anadolu Agency]

People hold Palestinian flags to protest against Israeli Prime Minister Benjamin Netanyahu in the West Bank on 28 September 2019 [Issam Rimawi/Anadolu Agency]

“There are no substantial reasons to believe that an investigation would not serve the interests of justice,” said Bensouda over the weekend. She has now filed a request with judges to rule on what territory a future inquiry would cover because of the contested legal and factual status of occupied Palestine. The prosecutor has urged them to “rule expeditiously” so that she can follow through the process quickly.

The role and behaviour of the Israeli military will fall under investigation, as will the scores of illegal settlements built in defiance of international law, the plight of Palestinian child prisoners and the detention without trial of other Palestinians. The act of moving Jewish settlers into the occupied Palestinian territories is a war crime which confirms Israel as a colonial-settler state hell bent on expansion, as is collective punishment, which Israel metes out frequently to Palestinians in Gaza, the West Bank and occupied Jerusalem.

READ: Palestinian human rights cannot be addressed without decolonisation 

The ICC has, apparently, specifically examined crimes committed by Israel since June 2014, including its military offensive against the Palestinians in the Gaza Strip in that year, which killed 2,251 people, including 1,462 civilians, at least 500 of whom were children. Israeli soldiers have also targeted clearly identified medics, journalists and other civilians during the regular Great March of Return protests in Gaza since March 2018; they too are likely to be investigated by the court.

The Palestinian Authority welcomed the ICC’s move, as did the Israeli human rights group B’Tselem, which insisted that, “Israel’s legal acrobatics in an attempt to whitewash its crimes must not be allowed to stop international legal efforts to, at long last, hold it to account.”

Should the ICC open a case it is hard to know exactly who could give credible evidence on Israel’s behalf. Its biggest supporter, US President Donald Trump, is currently being impeached for allegedly abusing his presidential powers; if there is enough support in Congress, he might even be removed from office, although this is unlikely in the Republican-controlled chamber. Nevertheless, his already limited credibility will be damaged even more by the process. Netanyahu, meanwhile, stands accused of bribery, fraud and breach of trust in three separate cases.

All in all, it looks as if the laws and conventions which Israel treats with such contempt may yet be its downfall. At the very least, it has to understand that its days of acting with total impunity are numbered, and in an increasingly toxic Middle East, that can only be a good thing.

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