[News] ICC Investigation of Israeli War Crimes in Occupied Palestine

[Anti-Imperialist News]

https://www.counterpunch.org/2020/05/19/what-you-need-to-know-about-the-icc-investigation-of-war-crimes-in-occupied-palestine/
What
You Need to Know about the ICC Investigation of War Crimes in Occupied
Palestine by Ramzy Baroud - Romana Rubeo
<https://www.counterpunch.org/author/ramzy-baroud-romana-rubeo/> - May 19,
2020
------------------------------

Fatou Bensouda, Chief Prosecutor of the International Criminal Court (ICC),
has, once and for all, settled the doubts on the Court’s jurisdiction to
investigate war crimes committed in occupied Palestine.

On April 30, Bensouda released a 60-page document
<https://www.icc-cpi.int/CourtRecords/CR2020_01746.PDF> diligently laying
down the legal bases for that decision, concluding that “the Prosecution
has carefully considered the observations of the participants, and remains
of the view that the Court has jurisdiction over the Occupied Palestinian
Territory.”

Bensouda’s legal explanation was itself a preemptive decision, dating back
to
<https://www.icc-cpi.int/Pages/item.aspx?name=20191220-otp-statement-palestine>
December 2019, as the ICC Prosecutor must have anticipated an
Israeli-orchestrated pushback against the investigation of war crimes
committed in the Occupied Territories.

After years of haggling, the ICC had resolved
<https://www.icc-cpi.int/Pages/item.aspx?name=20191220-otp-statement-palestine>
in December 2019 that, “there is a reasonable basis to proceed with an
investigation into the situation in Palestine, pursuant to article 53(1) of
the Statute.”

Article 53(1) merely describes
<https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf> the
procedural steps that often lead, or do not lead, to an investigation by
the Court.

That Article is satisfied when the amount of evidence provided to the Court
is so convincing that it leaves the ICC with no other option but to move
forward with an investigation.

Indeed, Bensouda had already declared
<https://www.icc-cpi.int/Pages/item.aspx?name=20191220-otp-statement-palestine>
late last year that she was,

“satisfied that (i) war crimes have been or are being committed in the West
Bank, including East Jerusalem, and the Gaza Strip… (ii) potential cases
arising from the situation would be admissible; and (iii) there are no
substantial reasons to believe that an investigation would not serve the
interests of justice.”

Naturally, Israel and its main Western ally, the United States, fumed
<https://www.middleeastmonitor.com/20200310-international-complicity-aids-us-israel-efforts-against-the-icc/>.
Israel has never been held accountable
<https://www.btselem.org/topic/accountability> by the international
community for war crimes and other human rights violations in Palestine.
The ICC’s decision, especially if the investigation moves forward, would be
an historic precedent.

But, what are Israel and the US to do when neither are state parties
<https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx>
in the ICC, thus having no actual influence on the internal proceedings of
the court? A solution had to be devised.

In an historic irony, Germany, which had to answer to numerous war crimes
committed by the Nazi regime during World War II, stepped in
<https://www.haaretz.com/israel-news/.premium-germany-offers-to-join-deliberation-in-icc-case-on-israel-palestine-1.8532301>
to serve as the main defender of Israel at the ICC and to shield accused
Israeli war criminals from legal and moral accountability.

On February 14, Germany filed a petition
<https://www.timesofisrael.com/berlin-joins-prague-in-supporting-israels-position-against-icc-probe/>
with the ICC requesting an “amicus curiae
<https://voelkerrechtsblog.org/event/the-amicus-curiae-mechanism-at-the-international-criminal-court/>”,
meaning “friend of the court”, status. By achieving that special status,
Germany was able to submit objections, arguing against the ICC’s earlier
decision on behalf of Israel.

Germany, among others, then argued
<https://www.haaretz.com/israel-news/.premium-germany-offers-to-join-deliberation-in-icc-case-on-israel-palestine-1.8532301>
that the ICC had no legal authority to discuss Israeli war crimes in the
occupied territories. These efforts, however, eventually amounted to nil.

The ball is now in the court of the ICC pre-trial chamber.

The pre-trial chamber consists of judges that authorize the opening of
investigations. Customarily once the Prosecutor decides to consider an
investigation, she has to inform the Pre-Trial Chamber of her decision.

According to the Rome Statute, Article 56(b)
<https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf>, “… the
Pre-Trial Chamber may, upon request of the Prosecutor, take such measures
as may be necessary to ensure the efficiency and integrity of the
proceedings and, in particular, to protect the rights of the defence.”

The fact that the Palestinian case has been advanced to such a point can
and should be considered a victory for the Palestinian victims of the
Israeli occupation. However, if the ICC investigation moves forward
according to the original mandate requested by Bensouda, there will remain
major legal and moral lapses that frustrate those who are advocating
justice on behalf of Palestine.

For example, the legal representatives of the ‘Palestinian Victims
Residents of the Gaza Strip’ expressed
<https://www.icc-cpi.int/CourtRecords/CR2020_01096.PDF> their concern on
behalf of the victims regarding “the ostensibly narrow scope of the
investigation into the crimes suffered by the Palestinian victims of this
situation.”

The ‘narrow scope of the investigation’ has thus far excluded such serious
crimes as crimes against humanity. According to the Gaza legal team, the
killing
<https://www.aljazeera.com/news/2019/03/hundreds-killed-thousands-wounded-year-gaza-rallies-190324103933927.html>
of hundreds and wounding of thousands of unarmed protesters participating
in the ‘Great March of Return’ is a crime against humanity that must also
be investigated.

The ICC’s jurisdiction, of course, goes beyond Bensouda’s decision to
investigate ‘war crimes’ only.

Article 5 <https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf>
of the Rome Statute – the founding document of the ICC – extends the
Court’s jurisdiction to investigate the following “serious crimes”:

(a) The crime of genocide

(b) Crimes against humanity

(c) War crimes

(d) The crime of aggression

It should come as no surprise that Israel is qualified to be investigated
on all four points and that the nature of Israeli crimes against
Palestinians often tends to, constitute a mixture of two or more of these
points simultaneously.

Former United Nations Special Rapporteur on Palestinian Human Rights
(2008-2014), Prof. Richard Falk, wrote
<https://mondediplo.com/2009/03/03warcrimes> in 2009, soon after a deadly
Israeli war on the besieged Gaza Strip, that,

“Israel initiated the Gaza campaign without adequate legal foundation or
just cause, and was responsible for causing the overwhelming proportion of
devastation and the entirety of civilian suffering. Israeli reliance on a
military approach to defeat or punish Gaza was intrinsically ‘criminal’,
and as such demonstrative of both violations of the law of war and the
commission of crimes against humanity.”

Falk extended his legal argument beyond war crimes and crimes against
humanity into a third category. “There is another element that strengthens
the allegation of aggression. The population of Gaza had been subjected to
a punitive blockade for 18 months when Israel launched its attacks.”

What about the crime of apartheid? Does it fit anywhere within the ICC’s
previous definitions and jurisdiction?

The International Convention on the Suppression and Punishment of the Crime
of Apartheid of November 1973 defines
<https://library.cityvision.edu/crime-apartheid> apartheid as,

“a crime against humanity and that inhuman acts resulting from the policies
and practices of apartheid and similar policies and practices of racial
segregation and discrimination, as defined in article II of the Convention,
are crimes violating the principles of international law, in particular
the  purposes and principles of the Charter of the United Nations, and
constituting a serious threat to international peace and security.”

The Convention came into force
<https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.10_International%20Convention%20on%20the%20Suppression%20and%20Punishment%20of%20the%20Crime%20of%20Apartheid.pdf>
in July 1976, when twenty countries ratified it. Mostly western powers,
including the United States and Israel, opposed it.

Particularly important about the definition of apartheid, as stated by the
Convention, is that the crime of apartheid was liberated from the limited
South African context and made applicable to racially discriminatory
policies in any state.

In June 1977, Addition Protocol 1 to the Geneva Conventions designated
<https://www.icrc.org/en/doc/assets/files/other/icrc_002_0321.pdf>
apartheid as, “a grave breach of the Protocol and a war crime.”

It follows that there are legal bases to argue that the crime of apartheid
can be considered both a crime against humanity and a war crime.

Former UN Special Rapporteur on Palestinian Human Rights (2000-2006), Prof.
John Dugard, said this
<https://www.democracynow.org/2015/5/6/ex_un_official_john_dugard_israel>
soon after Palestine joined the ICC in 2015,

“For seven years, I visited the Palestinian territory twice a year. I also
conducted a fact-finding mission after the Operation Cast Lead in Gaza in
2008, 2009. So, I am familiar with the situation, and I am familiar with
the apartheid situation. I was a human rights lawyer in apartheid South
Africa. And I, like virtually every South African who visits the occupied
territory, has a terrible sense of déjà vu. We’ve seen it all before,
except that it is infinitely worse. And what has happened in the West Bank
is that the creation of a settlement enterprise has resulted in a situation
that closely resembles that of apartheid, in which the settlers are the
equivalent of white South Africans. They enjoy superior rights over
Palestinians, and they do oppress Palestinians. So, one does have a system
of apartheid in the occupied Palestinian territory. And I might mention
that apartheid is also a crime within the competence of the International
Criminal Court.”

Considering the number of UN resolutions that Israel has violated
throughout the years – the perpetual occupation of Palestine, the siege on
Gaza, and the elaborate system of apartheid imposed on Palestinians through
a large conglomerate of racist laws (culminating in the so-called Nation-State
Law
<https://www.nytimes.com/2018/07/19/world/middleeast/israel-law-jews-arabic.html>
of July 2018) – finding Israel guilty of war crimes, among others “serious
crimes”, should be a straightforward matter.

But the ICC is not entirely a legal platform. It is also a political
institution that is subject to the interests and whims of its members.
Germany’s intervention, on behalf of Israel, to dissuade the ICC from
investigating Tel Aviv’s war crimes is a case in point.

Time will tell how far the ICC is willing to go with its unprecedented and
historic attempt aimed at, finally, investigating the numerous crimes that
have been committed in Palestine unhindered, with no recourse and no
accountability.

For the Palestinian people, the long-denied justice cannot arrive soon
enough.

*Ramzy Baroud is a journalist and the Editor of The Palestine Chronicle. He
is the author of five books. His latest is “**These Chains Will Be Broken*
<https://www.amazon.com/These-Chains-Will-Broken-Palestinian/dp/1949762092>*:
Palestinian Stories of Struggle and Defiance in Israeli Prisons” (Clarity
Press, Atlanta). Dr. Baroud is a Non-resident Senior Research Fellow at the
Center for Islam and Global Affairs (CIGA), Istanbul Zaim University (IZU).
His website is **www.ramzybaroud.net* <http://www.ramzybaroud.net/>  *Romana
Rubeo is an Italian writer and the managing editor of The Palestine
Chronicle. Her articles appeared in many online newspapers and academic
journals. She holds a Master’s Degree in Foreign Languages and Literature,
and specializes in audio-visual and journalism translation. *
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