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<div class="header reader-header reader-show-element"> <font
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href="http://www.palestinechronicle.com/facing-the-facts-israel-cannot-escape-icc-jurisdiction/">http://www.palestinechronicle.com/facing-the-facts-israel-cannot-escape-icc-jurisdiction/</a></font>
<h1 class="reader-title">Facing the Facts: Israel Cannot Escape
ICC Jurisdiction</h1>
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<div class="reader-estimated-time">June 5, 2019<br>
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<p><strong>By <a
href="http://www.palestinechronicle.com/writers/ramzy-baroud"
title="Display all articles for Ramzy Baroud">Ramzy
Baroud</a></strong></p>
<p><span>The Chief Military Advocate General of the
Israeli army, Sharon Afek, and the US Department of
Defense General Counsel, Paul Ney, <a
href="https://www.haaretz.com/israel-news/.premium-hague-criminal-court-has-no-jurisdiction-over-israeli-palestinian-conflict-army-s-t-1.7299334"><span>shared
a platform </span></a>at the ‘International
Conference on the Law of Armed Conflict’, which took
place in Herzliya, Israel between May 28-30.</span></p>
<p><span>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.</span></p>
<p><span>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).</span></p>
<p><span>Their tirade against the ICC mirrors that of
their leaders. While Israeli Prime Minister Benjamin
Netanyahu’s <a
href="https://www.jpost.com/Israel-News/Netanyahu-Its-absurd-for-ICC-to-put-US-or-Israeli-soldiers-on-trial-586805"><span>anti-ICC
position</span></a> is familiar, last April, US
President Donald Trump virulently expressed his
contempt for the global organization and everything it
represents.</span></p>
<p><span>“Any attempt to target American, Israeli, or
allied personnel for prosecution will be met with a
swift and vigorous response,” Trump <a
href="https://eu.usatoday.com/story/news/politics/2019/04/12/donald-trump-praises-international-criminal-court-over-war-crimes-decision/3448373002/"><span>said</span></a>
in writing on April 12.</span></p>
<p><span>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.</span></p>
<p><span>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
Palestinians.</span></p>
<p><span>“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 <a
href="https://www.haaretz.com/israel-news/.premium-hague-criminal-court-has-no-jurisdiction-over-israeli-palestinian-conflict-army-s-t-1.7299334"><span>said</span></a>.</span></p>
<p><span>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.</span></p>
<p><span>“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.</span></p>
<p><span>The Gaza protesters “are led by a terrorist
organization that deliberately uses civilians to carry
out attacks,” Afek said.</span></p>
<p><span>Afek sees unarmed protests in Gaza as a form of
terrorism, thus concurring with an <a
href="https://www.jpost.com/Arab-Israeli-Conflict/There-are-no-innocents-in-Gaza-says-Israeli-defense-minister-549173"><span>earlier
statement </span></a>made by then-Israeli Defense
Minister, Avigdor Lieberman, on April 8, 2018, when he
declared that “there are no innocents in Gaza.”</span></p>
<p><span>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.</span></p>
<p><span>‘No attacker, male or female, should make it out
of any attack alive,’ <a
href="https://www.independent.co.uk/news/world/middle-east/israel-shoot-to-kill-policy-palestinian-suspects-human-rights-watch-idf-soldiers-west-bank-gaza-a7505486.html"><span>Lieberman
said</span></a> in 2015. His orders were followed
implicitly, as hundreds of Palestinians were <a
href="https://www.btselem.org/statistics/fatalities/after-cast-lead/by-date-of-death/westbank/palestinians-killed-by-israeli-security-forces"><span>killed</span></a>
in the West Bank and Jerusalem for allegedly trying to
attack Israeli occupation soldiers or armed illegal
Jewish settlers.</span></p>
<p><span>Unlike democratic political systems everywhere,
in Israel, the occupation soldier becomes the
interpreter and <a
href="https://www.independent.co.uk/news/world/middle-east/elor-azaria-released-israel-defence-forces-soldier-convicted-manslaughter-palestinian-a8341581.html"><span>enforcer</span></a>
of the law.</span></p>
<p><span>Putting this policy into practice in Gaza is even
more horrendous as Israeli snipers are often killing
unarmed protesters from long distances. Even <a
href="https://www.middleeastmonitor.com/20190521-head-of-reporters-without-borders-says-israel-shot-journalists-intentionally/"><span>journalists</span></a>
and <a
href="https://www.aljazeera.com/news/2018/07/israeli-forces-deliberately-killed-palestinian-paramedic-razan-180717070735436.html"><span>medics</span></a>
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.</span></p>
<p><span>Last February, the United Nations Independent
Commission of Inquiry on Gaza’s protests <a
href="https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=24226&LangID=E"><span>concluded</span></a>
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.”</span></p>
<p><span>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.”</span></p>
<p><span>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.”</span></p>
<p><span>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 Statute.”</span></p>
<p><span>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.”</span></p>
<p><span>Israel has been accused of at least two of these
crimes – war crimes and crimes against humanity –
repeatedly, including in the <a
href="https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=24226&LangID=E"><span>February
repor</span></a>t by the United Nations
Independent Commission of Inquiry.</span></p>
<p><span>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.</span></p>
<p><span>Wrong again.</span></p>
<p><span><a
href="https://www.icc-cpi.int/nr/rdonlyres/add16852-aee9-4757-abe7-9cdc7cf02886/283503/romestatuteng1.pdf">Article
12</a></span><span> of 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.</span></p>
<p><span>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 jurisdiction.</span></p>
<p><span>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.</span></p>
<p><span>Afek’s skewed understanding of international law
went unchallenged at the Herzliya Conference, as
equally misguided interpreters of international law
flanked him.</span></p>
<p><span>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.</span></p>
<p><i><span>– 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 </span></i><a
href="http://www.ramzybaroud.net/"><i><span>www.ramzybaroud.net</span></i></a></p>
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