The news came through on 20 December last year that International Criminal Court (ICC) Prosecutor Fatou Bensouda had announced that, "After a thorough, independent and objective preliminary examination of all reliable information in the possession of her Office, the Office has concluded that all the criteria set out in the Rome Statute for the opening of an investigation have been met." What is the subject of this investigation? "Alleged crimes committed in the Occupied Palestinian Territory, including East Jerusalem, since 13 June 2014." In other words, territorial jurisdiction for the ICC was determined to include the Gaza Strip, the West Bank and East Jerusalem.
This decision gave the green light for the investigation of allegations of war crimes and crimes against humanity in Israel and the Palestinian territories. It will therefore focus on the 2014 Israeli military offensive against the Gaza Strip known as "Operation Protective Edge". It will also look at the repression of the Great March of Return protests in Gaza since 2018, as well as Israel's ever-expanding illegal settlements. Any crimes committed by the Palestinian Authority (PA) and Hamas will come under the spotlight.
A long political and diplomatic path has been trodden to reach this historic decision that opens a judicial era in what is still called "the Israeli-Palestinian conflict". French surgeon Christophe Oberlin has described this path in detail in his book published last month, Les dirigeants Israéliens devant la Cour pénale internationnal – L'enquête (Israeli leaders in front of the International Criminal Court: The investigation). The English translation of the book should be published in January 2021.
Nicknamed the "surgeon of Gaza", Oberlin visits Gaza at least three times a year, when he operates on the victims of war and trains Palestinian surgeons in microsurgery and reconstructive surgery. His knowledge of the field and the actors involved is detailed in his book.
On paper, the legal path seems simple. On 1 January, 2015, the Palestinian Authority filed a declaration for alleged crimes committed in the occupied Palestinian territory. A day later, the PA acceded to the Rome Statute with the UN Secretary-General.
The ICC was created in 1998, following the failure of the UN to prevent the 1995 massacre of 8,000 Bosnian Muslims in Srebrenica, and the 1994 massacre of 800,000 members of the Tutsi tribe in Rwanda by the Hutu majority in that country. Both were deemed to be acts of genocide. As Oberlin admits, the Court's actions have been observed with suspicion by certain countries of the global south. The fault may lie in the fact that it has been much more interested in going after African leaders and neglected the actions of Western countries.
This is a mistrust that Oberlin also sees in Palestine: "Until 2010, the ICC had indeed shone only on the African continent. But the proof has been given — notably with the opening of investigations in Afghanistan — that the ICC, for which Bensouda fought, is for everyone. I also heard that the ICC was the same as the UN, therefore the justice of the winners for the winners. It took a long road to convince the political authorities that the judicial tool was relevant."
When writing his book, Oberlin had to plunge into the mysteries and meanders of international law, particularly its criminal law dimension. To do so, he says he has applied "the same meticulousness" that he applies to his profession as a surgeon. "In medicine, every assertion must be referenced," he tells me. "The political events and legal acts that I describe are accessible to everyone. The decisions and debates of the ICC are available on its website: memoirs, exchanges, decisions."
To be certain of the rigour of his presentation, Oberlin was in regular contact with Gilles Devers, an ICC-certified French lawyer. Devers was one of the spokespersons for a group of 350 NGOs represented by 40 lawyers in charge of processing a legal application to the ICC for war crimes alleged to have been committed during Israel's military offensive against Gaza in 2008-2009.
Another source were the thousands of documents on WikiLeaks known as the Palestine papers. They include the verbatim minutes of meetings between the Palestinian negotiators and the Israelis. "It was thrilling to immerse myself in these documents," says Oberlin. "What struck me is, both the lack of knowledge of Palestinian policies regarding international criminal law and also the very game of politics that we see when it comes to going before the ICC or negotiating with Israel. The opposition between the PA and Hamas is particularly evident. The PA seemed to have only one goal: to do nothing that could be considered a victory for Hamas."
What Oberlin's book reveals is the political and diplomatic flip side. A chaotic side, if there is one. It gives details of PA President Mahmoud Abbas's procrastination in bringing the matter before the ICC. Oberlin explains it, first of all, by the very structure of the PA. "The PA is a form of legal ersatz. It stems from the Oslo Accords which condition many points to the will of the Israeli side. This PA can one day become a state, but only if the Israeli side agrees, a precondition set in contradiction to all the rules of international law. Secondly, the PA is a regime that is very far from democracy. Since 2009, at least, the parliament and the president are illegal. What prevails is the authority of the leader and his entourage. Some in this entourage are directly linked to the Israeli side and do not hide it."
There are moments for some serious reflection throughout the book. For example: "Mahmoud Abbas hesitated on two main subjects: adhering or not to the ICC and opening or not an investigation. Many times he hesitated. These requests could have been made much earlier. Why not then and why so late. Many people lost their lives during this period of hesitation. It seems that joining or not joining the ICC was used for a long time by Mahmoud Abbas as a political tool. This is the fundamental error. Politics and law are two different things. Once the investigation is opened, it is only law."
What is clear from Oberlin's work is that such diplomatic and legal mind games prevailed in Gaza. The passivity of the PA is obvious; it seems to go with the flow more than anticipating events and taking the lead. A complaint went to the ICC in 2010 from Gaza. A second complaint, also from Gaza, was made in the middle of the 2014 war.
"[In 2009, the PA] Minister of Justice had filed the first complaint without involving the head of state," explains Oberlin. "It was a complaint from a state authority and not from the state. Therefore, these complaints could not be taken into account. It was only when the state joined the ICC and afterwards requested an investigation in 2018 that they were reactivated."
However, other issues, legal ones, may have slowed down the referral to the ICC. The main central legal obstacle has been that under the Rome Statute, only states can recognise the ICC's jurisdiction over their territory and nationals. The whole issue was whether Palestine met the conditions to qualify as a state. When the first application was filed by the Palestinian Authority in 2009, it was rejected in April 2012 by former prosecutor Luis Moreno Ocampo on the grounds that it was difficult to decide whether or not Palestine qualified as a state. The prosecutor had referred to the UN to decide on Palestine's status.
Another legal point is that Israel is not a member of the ICC, even if this does not prevent the opening of an investigation. The country had finally refused to ratify the Rome Statute, following the addition of the transfer of a civilian population and settlements to the list of war crimes among other such crimes such as genocide, aggression and crimes against humanity.
Yet Israel is very attentive to the ICC's actions. The Attorney-General of Israel, Avichaï Mandelblit, published a memorandum several hours before ICC Prosecutor Bensouda's announcement about the jurisdiction of the court in Israel/Palestine. Mandelblit made the argument that only sovereign states can be members of the Rome Statute and delegate their jurisdiction to the ICC. According to his memorandum, Palestine is not a state. In particular, it focused on the fact that Palestine is not a sovereign state, while also denying any occupation of Palestinian territory. However, it was pointed out by Hagai El-Ad of the Israeli NGO B'tselem — which established a counter-argument to Manderblit's — that "Palestine is not a 'sovereign state' precisely because it is under Israeli occupation."
Oberlin notes that "the word 'sovereign' appears nowhere in the Treaty of Rome." He underlines "the contradiction" of the Israeli arguments and specifies: "According to the Hague conventions, the state of occupation that prevents sovereignty does not make the notion of state disappear. The ICC accepted Palestine as a state by giving it all the rights and duties of membership. This does not presume borders or that Palestine fulfils all the conditions according to geopolitical definitions. Bensouda in her memoirs specifies that the right of self-determination is not included in the Oslo Accords and that this right can be embodied in the form of two states but also in the form of voluntary integration into another state. In other words, it leaves the door open to a single state to which the Palestinians would be attached in case of self-determination. It does not make policy and does not augur well for the future borders of one or two states. It only says that with respect to the ICC, almost all ICC members (except for Canada) have accepted Palestine as a member."
Regarding the question of the ICC's jurisdiction, Oberlin recalls the principle of complementarity. The ICC has jurisdiction only in the case of a state that does not have an effective judicial system to prosecute, and there is a lack of capacity or political will. As far as he is concerned, it is also because Palestine is unable to judge by itself the crimes committed that it had to refer the matter to the ICC.
Oberlin also details how meticulously the papers filed with the ICC were prepared. Thousands of files arrived, especially from Gaza, "in a form acceptable to the ICC" which, he recalls, does not have the abilities for its immense task. "The prosecutor's office has 30 people, who have to deal with all the crimes that are referred to them to decide whether or not to open an investigation. There is a true mismatch between the ICC's manpower and the immense task it faces, especially since the court does not have a sufficient budget and has no police force."
He describes the very professional way in which the investigation and collection of evidence has been organised, the chain of elements that leads to very solid individual cases. "This is a huge collection of video, audio, autopsy reports, blood samples and other evidence, with all the elements of evidence that allow a judgment to be made. Thanks to this work, after five years of preliminary investigation, Fatou Bensouda said without ambiguity that all the elements were gathered to open an investigation." As a result, "more than 2,400 individual complaints, those that are the most frightening to Israel, have been registered."
Oberlin is certain that "the future lies in taking the Palestinian question in front of the courts." According to him, in the coming months, investigations and hearings will take place. Convocations of Israeli officials will also happen. "Israel has already drawn up a list of officials who will be advised not to travel to the 123 countries that have joined the ICC and who have pledged to hand over any person present on its territory and requested by the ICC. This does not mean that tomorrow a European state will refer an Israeli official to the ICC. But a militant landscape will be there to denounce those countries which, although adhering to the Rome Statute, are not fulfilling their duty. This will make the Israeli side reflect on the violence it has used until now. Perhaps enough to force it to reduce the use of violence."
There remains the international dimension of this issue, in particular the role of the United States, which is not a member of the ICC. For the record, if President Bill Clinton had signed the Rome Statute in 2000, he did not send it to the US Senate for ratification. In 2002, the George W Bush administration informed the UN Secretary-General that the United States had no intention of ratifying the Rome Statute.
In March 2019, US Secretary of State Mike Pompeo warned that Washington would impose restrictions on any ICC staff who investigate US citizens or those of allied-countries. The US State Department subsequently revoked the entry visa issued to ICC Chief Prosecutor Fatou Bensouda. Taken together, this might suggest that the US and its allies, particularly Israel in this case, have something to hide.