Israel’s War Crimes in Palestine
The ICC’s Gavel Strikes
Judges at the International Criminal Court (ICC), on February 05, announced a decision whereby they ruled that the court has jurisdiction over war crimes committed in the Palestinian territories, paving the way for the ICC to investigate alleged war crimes committed in the 2014 Israeli-Palestinian conflict in the besieged Gaza Strip by both the Israeli army and the Palestinian armed factions.
According to the United Nations’ decisions and principles of international law, the Israeli-occupied Palestinian territories belong to the Palestinian people and they have been under the occupation of Israel since 1967. Palestine used its UN observer state status, gained in 2012, to join the ICC and call for an investigation into Israeli actions.
The ICC began to investigate Israeli atrocities in the occupied territories after Palestine joined the court in 2015. Palestinian authorities asked the ICC to investigate actions Israel took while attacking the Gaza Strip in 2014, during which hundreds of innocent people were killed.
The ICC’s chief prosecutor, Fatou Bensouda, has been investigating both sides of the conflict after the Palestinian government referred a case to the ICC over Israel’s continuous settlement in the West Bank, the killing of Palestinians at the Gaza-Israel border during protests and the poor treatment of Palestinian prisoners in Israel.
In 2019, Bensouda explained that there was a reasonable basis to proceed with an investigation and she was convinced that war crimes had been committed on Palestinian lands. However, due to Palestine’s status as an occupied territory rather than a sovereign country, she had waited for judges to “confirm” if the court, headquartered in The Hague, had the authority.
The ICC decision also marks a victory for international groups fighting for the legal recognition of human rights violations committed across Palestine for many decades.
Since 2016, Human Rights Watch (HRW) has called on the ICC to pursue “a formal Palestine investigation” given strong evidence that serious war crimes have been committed there, according to Balkees Jarrah, Human Rights Watch’s Associate Director for International Justice.
“Impunity for these abuses remains the norm and highlights the importance of the ICC taking action as a court of last resort in situations like Palestine where recourse to domestic justice has been foreclosed.
In the decision, Pre-Trial Chamber I of the ICC, which comprised Judge Péter Kovács (Presiding Judge), Judge Marc Perrin de Brichambaut and Judge Reine Adélaïde Sophie Alapini-Ganso, noted that, among similarly worded resolutions, the General Assembly of the United Nations in Resolution 67/19 “[reaffirmed] the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967.” On this basis, the majority, composed of Judge Reine Adélaïde Sophie Alapini-Gansou and Judge Marc Perrin de Brichambaut, found that the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem. In addition, the Chamber found, by majority, that the arguments regarding the Oslo Agreements, and its clauses limiting the scope of Palestinian jurisdiction, are not pertinent to the resolution of the issue of the Court’s territorial jurisdiction in Palestine. Such matters and other further questions on jurisdiction may be examined when and if the Prosecutor submits an application for the issuance of a warrant of arrest or summons to appear.
Judge Marc Perrin de Brichambaut appended a partly separate opinion on the reasons for which article 19(3) of the Statute is applicable in the present situation. Judge Péter Kovács, Presiding Judge, appended a partly dissenting opinion, in which he disagrees on the fact that Palestine qualifies as ‘[t]he State on the territory of which the conduct in question occurred’ for the purposes of article 12(2)(a) of the Statute, and that the Court’s territorial jurisdiction in the Situation in Palestine extends – in a quasi-automatic manner and without any restrictions – to the territories occupied by Israel since 1967.
While making clear the court was not taking a stance on any border disputes, the judges said the court’s territorial jurisdiction extended “to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.”
It rejected Israel’s arguments, stating that Palestine had “the right to be treated as any other state party” to its statute.
Investigating the crimes
The judgement, which includes potential war crimes, is a major move towards ending impunity in the 53-year-old occupation of the West Bank, including East Jerusalem and Gaza. Bensouda, a Gambian lawyer, has said she would investigate both the Israeli military as well as Palestinian armed groups, including the Gaza-based Hamas faction, which has been accused of “intentionally directing attacks against civilians,” according to her office.
The ICC Prosecutor’s investigations consist of gathering and examining evidence, questioning persons under investigation and questioning victims and witnesses, for the purpose of finding evidence of a suspect’s innocence or guilt. The Prosecutor sends investigators to areas where the alleged crimes occurred to gather evidence. In order to conduct its investigations, the Prosecutor may require assistance from States and international organizations.
The ICC prosecutor can now investigate a number of past allegations, including “grave crimes” committed by Israel during the 2014 war against Gaza, the killing and wounding of thousands of largely unarmed demonstrators during the Great March of Return in 2018-2019 and Israel’s settlement activities in East Jerusalem and the West Bank. Moreover, the prosecutor can also look into allegations of grave crimes involving Palestinian armed groups.
Although the ICC’s decision is an embarrassing setback for Israel, it has little to fear at this stage because the prosecution of Israeli officials still remains hypothetical. Yet the ruling opens the door to a potentially troubling scenario in which former and current Israeli officials might risk arrest if they travel abroad. Still, proving war crimes could be difficult. Israel says it acted in self-defence against nonstop rocket fire against its cities. It also accuses Hamas of using civilians as human shields. Israel also says its own judicial system is more than capable of investigating itself. After the war, the military opened dozens of investigations into the conduct of its troops. Although there were only a handful of convictions on minor charges, that could be enough for Bensouda, who dropped a similar case against British troops in Iraq last year because UK authorities had investigated.
“On the basis of preliminary ICC investigations, the alleged perpetrators of the crimes include Netanyahu, as well as other political officials and military commanders and IDF personnel. There is little doubt in my mind, given the availability of abundant evidence and credible witnesses, that an ICC investigation would produce indictments, convictions, and arrest warrants,” says Richard Falk, a well-known international law professor.
Israel’s ongoing settlement building on occupied lands, starting around half a century ago, could be much harder to defend. Some 700,000 Israelis now live in settlements built in the West Bank and east Jerusalem. Settlements are widely viewed as illegal based on the Geneva Convention principle that an occupying power is barred from transferring its population to territories captured in war. Population transfers are listed as a war crime in the ICC’s founding treaty, the Rome Statute.
Israel annexed east Jerusalem after the 1967 war and considers the area an inseparable part of its capital. It says the West Bank is “disputed,” not occupied, and its fate should be decided through negotiations.
Yet the Israeli positions have little support internationally, particularly since the departure of the settlement-friendly Trump administration in January this year.
Does Bensouda have enough time?
The case is complicated and could lose its way in the ICC for several reasons. First of all, ICC prosecutor Bensouda’s term will end in June 2021. It appears that there is not enough time for a difficult investigation like the one Bensouda has long sought to pursue. So, Bensouda’s tight timetable may persuade her not to take action.
It remains to be seen whether she will go ahead with the investigation so near to her replacement and whether the new prosecutor will feel motivated to proceed with such controversial investigations.
Boost for Palestinians
Regardless of what happens next, the ICC’s ruling is a major breakthrough for the Palestinians. Israel has defied dozens of UN resolutions with its occupation of Palestinian territory and illegal building of settlements. It has ignored countless human rights reports on its extrajudicial killing of Palestinians, house demolitions, land expropriation, and the illegal displacement of civilians. In fact, it has never been held accountable for its actions, thanks to the blind bipartisan support of the US Congress and successive administrations.
The ICC probe will refer to UN resolutions and international conventions in its deliberations, putting Israel and its actions into the limelight and rekindling international sympathy for the plight of Palestinians, while giving strength to anti-occupation movements such as Boycott, Divestment and Sanctions (BDS). The long-term damage to Israel’s image will be grave as long as the probe drags on, and even if it reaches a dead end due to external pressure. This ruling should give much-needed momentum to efforts to revive the peace process and push for a conclusion to the decades of conflict. Even though the US says it opposes the ICC verdict, it should give Washington an excuse to intervene in a bid to create a foundation for a new drive to deliver a two-state solution, which President Joe Biden has affirmed his commitment to.
The writer is a member of staff.