[News] Facing the Facts: Israel Cannot Escape ICC Jurisdiction

Anti-Imperialist News news at freedomarchives.org
Thu Jun 6 13:26:30 EDT 2019


  Facing the Facts: Israel Cannot Escape ICC Jurisdiction

June 5, 2019

*By Ramzy Baroud <http://www.palestinechronicle.com/writers/ramzy-baroud>*

The Chief Military Advocate General of the Israeli army, Sharon Afek, 
and the US Department of Defense General Counsel, Paul Ney, shared a 
the ‘International Conference on the Law of Armed Conflict’, which took 
place in Herzliya, Israel between May 28-30.

Their panel witnessed some of the most misconstrued interpretations of 
international law ever recorded. It was as if Afek and Ney were making 
up their law on warfare and armed conflict, with no regard to what 
international law stipulates.

Unsurprisingly, both Afek and Ney agreed on many things, including that 
Israel and the US are blameless in all of their military conflicts, and 
that they will always be united against any attempt to hold them 
accountable for war crimes by the International Court of Justice (ICC).

Their tirade against the ICC mirrors that of their leaders. While 
Israeli Prime Minister Benjamin Netanyahu’s anti-ICC position 
is familiar, last April, US President Donald Trump virulently expressed 
his contempt for the global organization and everything it represents.

“Any attempt to target American, Israeli, or allied personnel for 
prosecution will be met with a swift and vigorous response,” Trump said 
in writing on April 12.

While Trump’s (and Netanyahu’s) divisive language is nothing new, Afek 
and Ney were entrusted with the difficult task of using legal language 
to explain their countries’ aversion for international law.

Before the Herzliya Conference, Afek addressed the Israel Bar 
Association convention in Eilat on May 26. Here, too, he made some 
outlandish claims as he absolved, in advance, Israeli soldiers who kill 

“A soldier who is in a life-threatening situation and acts to defend 
himself (or) others (he) is responsible for, is receiving and will 
continue receiving full back-up from the Israeli army,” he said 

The above assertion appears far more sinister once we remember Afek’s 
views on what constitutes a “life-threatening situation”, as he had 
articulated in Herzliya a few days later.

“Thousands of Gaza’s residents (try) to breach the border fence,” he 
said, concerning the non-violent March of Return at the fence separating 
besieged Gaza from Israel.

The Gaza protesters “are led by a terrorist organization that 
deliberately uses civilians to carry out attacks,” Afek said.

Afek sees unarmed protests in Gaza as a form of terrorism, thus 
concurring with an earlier statement 
by then-Israeli Defense Minister, Avigdor Lieberman, on April 8, 2018, 
when he declared that “there are no innocents in Gaza.”

Israel’s shoot-to-kill policy, however, is not confined to the Gaza 
Strip but is also implemented with the same degree of violent enthusiasm 
in the West Bank.

‘No attacker, male or female, should make it out of any attack alive,’ 
Lieberman said 
in 2015. His orders were followed implicitly, as hundreds of 
Palestinians were killed 
in the West Bank and Jerusalem for allegedly trying to attack Israeli 
occupation soldiers or armed illegal Jewish settlers.

Unlike democratic political systems everywhere, in Israel, the 
occupation soldier becomes the interpreter and enforcer 
of the law.

Putting this policy into practice in Gaza is even more horrendous as 
Israeli snipers are often killing unarmed protesters from long 
distances. Even journalists 
and medics 
have not been spared the same tragic fate as the hundreds of civilians 
who were killed since the start of the protests in March 2018.

Last February, the United Nations Independent Commission of Inquiry on 
Gaza’s protests concluded 
that “it has reasonable grounds to believe that during the Great March 
of Return, Israeli soldiers committed violations of international human 
rights and humanitarian law. Some of those violations may constitute war 
crimes or crimes against humanity, and must be immediately investigated 
by Israel.”

In his attack on the ICC at the Herzliya Conference, Afek contended that 
“Israel is a law-abiding country, with an independent and strong 
judicial system, and there is no reason for its actions to be 
scrutinized by the ICC.”

The Israeli General goes on to reprimand the ICC by urging it to focus 
on “dealing with the main issues for which it was founded.”

Has Afek even read the Rome Statute? The first Article states that the 
ICC has the “power to exercise its jurisdiction over persons for the 
most serious crimes of international concern, as referred to in this 

Article 5 elaborates the nature of these serious crimes, which include: 
“(a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; 
(d) The crime of aggression.”

Israel has been accused of at least two of these crimes – war crimes and 
crimes against humanity – repeatedly, including in the February repor 
by the United Nations Independent Commission of Inquiry.

Afek may argue that none of this is relevant to Israel, for the latter 
is not “a party to the Rome Statute,” therefore, does not fall within 
ICC’s legal jurisdiction.

Wrong again.

Article 12 
the Rome Statute allows for ICC’s jurisdiction in two cases; first, if 
the State in which the alleged crime has occurred is itself a party of 
the Statute and, second, if the State where the crime has occurred 
agrees to submit itself to the jurisdiction of the court.

While it is true that Israel is not a signatory of the Rome Statute, 
Palestine has, since 2015, agreed to submit itself to the ICC’s 

Moreover, in April 2015, the State of Palestine formally became a member 
of the ICC, thus giving the court jurisdiction to investigate crimes 
committed in the Occupied Territories since June 13, 2014. These crimes 
include human rights violations carried out during the Israeli war on 
Gaza in July-August of the same year.

Afek’s skewed understanding of international law went unchallenged at 
the Herzliya Conference, as equally misguided interpreters of 
international law flanked him.

However, nothing proclaimed by Israel’s top military prosecutor or his 
government will alter the facts. Israeli war crimes must not go 
unpunished; Israel’s judicial system is untrustworthy, and the ICC has 
the legal right and moral duty to carry out the will of the 
international community and hold to account those responsible for war 
crimes anywhere, including Israel.

/– Ramzy Baroud is a journalist, author and editor of Palestine 
Chronicle. His last book is ‘The Last Earth: A Palestinian Story’ (Pluto 
Press, London). Baroud has a Ph.D. in Palestine Studies from the 
University of Exeter and was a Non-Resident Scholar at Orfalea Center 
for Global and International Studies, University of California Santa 
Barbara. His website is //www.ramzybaroud.net/ <http://www.ramzybaroud.net/>

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