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Hamas terrorist?  What the law says

October 19, 2023 at 9:00 pm

People gather for the Edmonton Emergency Protest and Sit-In for Gaza outside the Alberta Legislature, on October 18, 2023, in Edmonton, Canada. [Stringer – Anadolu Agency]

For historians, Palestine has existed for more than 3000 years; the modern State of Palestine for a century, according to jurists – with recognised borders, its own judicial system, Palestinian passports, stamps and currency. A State of Palestine that made international agreements with surrounding countries, including the mandatory power, the United Kingdom.  So, the current war does not start on Saturday, 7 October, 2023. Palestine has been at war since 1948.  And it resembles an active volcano that rumbles every day, with suffering and anger. Sometimes with explosions. The eruption we are witnessing today is the most powerful since 1948.

The Palestinian people are not demanding anything: they are demanding the restoration of their sovereign rights to their land. The current eruption is the consequence of this initial violation of the law. Yet, for Western governments, it is the Palestinian people who have become the culprit. Legal action, through the interplay of principles, makes it possible to re-establish reality. We have to go back to the origin of the conflict, to 1917, with the Western desire to create a settlement in the Middle East to control the Arab peoples by the means of using Zionist policies. Israel is the occupying military power in Gaza, despite its withdrawal from the Territory, as it imposes total control. According to customary law, Israel owes protection to the occupied population. However, not only does it fail to protect it, but it has been attacking it with blockades, bombings and now a total siege since 9 October, 2023.

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Israeli political decisions of detaining Palestinian Resistance fighters are presented as “judgments”, which gives the appearance of regularity. However, these are prisoners of war, whom Israel does not have the right to judge, in accordance with the 3rd Geneva Convention. Even from the point of view of the 4th Convention, the “judgments” are illegal: trials held outside the Palestinian Territory, proceedings that do not respect fair trial. Also, the detained Palestinians are political hostages of Israel. And there are no “Hamas hostages”, on the one hand, and “Palestinian prisoners of Israel”, on the other.

According to the International Criminal Court, the only international tribunal empowered to deal with war crimes, Palestine is a State. In fact, the State of Palestine sits in the Assembly of States Parties to the ICC, on an equal footing with the other 122 States. Thus, the Western powers that deny the reality of the State of Palestine are at odds with themselves. Hamas affirmed its agreement with international law and its willingness to cooperate with the ICC. On the other hand, Israel rejects international law, and refuses any cooperation with the ICC. It is Hamas that is in tune with the law, and Israel that denies the law. The crimes being committed are the consequence of this denial of the law.

The ICC statute defines a long list of offences, none of which refers to terrorism, as this word has always been used to discredit political opponents (De Gaulle, Mandela …). Also, Hamas, which has recognised the ICC and wants to cooperate, rejects this accusation of “terrorism”, which is a political and media concept, but not a legal one. Hamas has never been on the UN’s list of terrorist organisations.

The acts committed by the Palestinian attackers on the current territory of Israel will be judged by Israel and the Western powers (procedure already opened in France). Israel will not agree to hand over its cases to the ICC. The ICC has jurisdiction because of the Palestinian nationality of the combatants, but it will apply the principle of subsidiarity: it intervenes only in the absence of proceedings conducted by national judges.  Also, the line must be:

1) to challenge future Israeli judgments, since Israel refuses to apply international law;

2) to request an investigation by the ICC, as Israeli domestic law ignores international law. Hamas is waiting for the justice system to pronounce itself, but in a fair procedure and, therefore, before the ICC.

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When Israel initiates proceedings before its courts, the ICC Prosecutor will have to be asked to open the same investigation, demonstrating that the Israeli proceedings are serious violations of humanitarian law (Statute, Art. 8, 2, a, 6) and, thus, filing a complaint against the Israeli judges. It will be an indictment of the Israeli justice system.  The possibility of a trial against resistance fighters at the ICC is unlikely, except for minor aspects. Indeed, Israel will never agree to defer to the ICC, which would force it to accept the ICC’s judgment of 5 February, 2021 that recognised the State of Palestine. Also, the Resistance must multiply its references to the ICC … even if it remains inactive.  Before the ICC, the framework of the defence would be self-defence. The Statute provides for a broad version with Article 31 d, which legitimises the commission of war crimes if it is the only way to ensure the protection of the people. So there is a lot of room for manoeuvre.

Israel does not want to withdraw from the Occupied Palestinian Territories, including Jerusalem, and its solution is one single State. Israel does not want to accept the equality of Arab citizens, because that means the end of the Jewish State, and the only way out is the apartheid State. Therefore, complaints must be considered against European leaders, who are assisting in this policy, as complicit in the crime of international apartheid. All European States have ratified the ICC Statute.  As soon as the time is right, it will be necessary to submit the complaint for the annexation of Jerusalem because, given the importance of the stakes, the clarity of the applicable law and the evidence, the Prosecutor, Karim Khan, will not be able to sit for seven years (the end of his mandate) without doing anything. The investigation into the ongoing crimes (indiscriminate bombings, total siege, forced displacement of the population) all fall under the jurisdiction of the ICC, but the Prosecutor will probably highlight the complexity of the case, the mass of facts, to delay the procedure.

Hence, the essential interest is having the complaint for the annexation of Jerusalem judged. The credibility of the Court, which is watched by the whole world, is at stake, and it is a tribute to the Resistance that has mobilised to protect Jerusalem.

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