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<font size="1"><a href="https://www.counterpunch.org/2020/05/19/what-you-need-to-know-about-the-icc-investigation-of-war-crimes-in-occupied-palestine/">https://www.counterpunch.org/2020/05/19/what-you-need-to-know-about-the-icc-investigation-of-war-crimes-in-occupied-palestine/</a>
</font><h1 class="gmail-reader-title">What You Need to Know about the ICC Investigation of War Crimes in Occupied Palestine</h1>
<span class="gmail-post_author_intro">by</span> <span class="gmail-post_author"><a href="https://www.counterpunch.org/author/ramzy-baroud-romana-rubeo/" rel="nofollow">Ramzy Baroud - Romana Rubeo</a></span> - May 19, 2020<br></div>
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<p>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.</p>
<p>On April 30, Bensouda released a <a href="https://www.icc-cpi.int/CourtRecords/CR2020_01746.PDF">60-page document</a>
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.”</p>
<p>Bensouda’s legal explanation was itself a preemptive decision, <a href="https://www.icc-cpi.int/Pages/item.aspx?name=20191220-otp-statement-palestine">dating back to</a>
December 2019, as the ICC Prosecutor must have anticipated an
Israeli-orchestrated pushback against the investigation of war crimes
committed in the Occupied Territories.</p>
<p>After years of haggling, the ICC <a href="https://www.icc-cpi.int/Pages/item.aspx?name=20191220-otp-statement-palestine">had resolved</a>
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.”</p>
<p>Article 53(1) merely <a href="https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf">describes</a> the procedural steps that often lead, or do not lead, to an investigation by the Court.</p>
<p>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.</p>
<p>Indeed, Bensouda had already <a href="https://www.icc-cpi.int/Pages/item.aspx?name=20191220-otp-statement-palestine">declared</a> late last year that she was,</p>
<p>“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.”</p>
<p>Naturally, Israel and its main Western ally, the United States, <a href="https://www.middleeastmonitor.com/20200310-international-complicity-aids-us-israel-efforts-against-the-icc/">fumed</a>. Israel has never been <a href="https://www.btselem.org/topic/accountability">held accountable</a>
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.</p>
<p>But, what are Israel and the US to do when neither are <a href="https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx">state parties</a> in the ICC, thus having no actual influence on the internal proceedings of the court? A solution had to be devised.</p>
<p>In an historic irony, Germany, which had to answer to numerous war crimes committed by the Nazi regime during World War II, <a href="https://www.haaretz.com/israel-news/.premium-germany-offers-to-join-deliberation-in-icc-case-on-israel-palestine-1.8532301">stepped in</a>
to serve as the main defender of Israel at the ICC and to shield
accused Israeli war criminals from legal and moral accountability.</p>
<p>On February 14, Germany <a href="https://www.timesofisrael.com/berlin-joins-prague-in-supporting-israels-position-against-icc-probe/">filed a petition</a> with the ICC requesting an “<a href="https://voelkerrechtsblog.org/event/the-amicus-curiae-mechanism-at-the-international-criminal-court/">amicus curiae</a>”,
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.</p>
<p>Germany, among others, then <a href="https://www.haaretz.com/israel-news/.premium-germany-offers-to-join-deliberation-in-icc-case-on-israel-palestine-1.8532301">argued</a>
that the ICC had no legal authority to discuss Israeli war crimes in
the occupied territories. These efforts, however, eventually amounted to
nil.</p>
<p>The ball is now in the court of the ICC pre-trial chamber.</p>
<p>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.</p>
<p>According to the Rome Statute, <a href="https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf">Article 56(b)</a>,
“… 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.”</p>
<p>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.</p>
<p>For example, the legal representatives of the ‘Palestinian Victims Residents of the Gaza Strip’ <a href="https://www.icc-cpi.int/CourtRecords/CR2020_01096.PDF">expressed</a>
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.”</p>
<p>The ‘narrow scope of the investigation’ has thus far excluded such
serious crimes as crimes against humanity. According to the Gaza legal
team, the <a href="https://www.aljazeera.com/news/2019/03/hundreds-killed-thousands-wounded-year-gaza-rallies-190324103933927.html">killing</a>
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.</p>
<p>The ICC’s jurisdiction, of course, goes beyond Bensouda’s decision to investigate ‘war crimes’ only.</p>
<p><a href="https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf">Article 5</a>
of the Rome Statute – the founding document of the ICC – extends the
Court’s jurisdiction to investigate the following “serious crimes”:</p>
<p>(a) The crime of genocide</p>
<p>(b) Crimes against humanity</p>
<p>(c) War crimes</p>
<p>(d) The crime of aggression</p>
<p>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.</p>
<p>Former United Nations Special Rapporteur on Palestinian Human Rights (2008-2014), Prof. Richard Falk, <a href="https://mondediplo.com/2009/03/03warcrimes">wrote</a> in 2009, soon after a deadly Israeli war on the besieged Gaza Strip, that,</p>
<p>“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.”</p>
<p>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.”</p>
<p>What about the crime of apartheid? Does it fit anywhere within the ICC’s previous definitions and jurisdiction?</p>
<p>The International Convention on the Suppression and Punishment of the Crime of Apartheid of November 1973 <a href="https://library.cityvision.edu/crime-apartheid">defines</a> apartheid as,</p>
<p>“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.”</p>
<p>The Convention <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.10_International%20Convention%20on%20the%20Suppression%20and%20Punishment%20of%20the%20Crime%20of%20Apartheid.pdf">came into force</a> in July 1976, when twenty countries ratified it. Mostly western powers, including the United States and Israel, opposed it.</p>
<p>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.</p>
<p>In June 1977, Addition Protocol 1 to the Geneva Conventions <a href="https://www.icrc.org/en/doc/assets/files/other/icrc_002_0321.pdf">designated</a> apartheid as, “a grave breach of the Protocol and a war crime.”</p>
<p>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.</p>
<p>Former UN Special Rapporteur on Palestinian Human Rights (2000-2006), Prof. John Dugard, said <a href="https://www.democracynow.org/2015/5/6/ex_un_official_john_dugard_israel">this</a> soon after Palestine joined the ICC in 2015,</p>
<p>“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.”</p>
<p>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 <a href="https://www.nytimes.com/2018/07/19/world/middleeast/israel-law-jews-arabic.html">Nation-State Law</a> of July 2018) – finding Israel guilty of war crimes, among others “serious crimes”, should be a straightforward matter.</p>
<p>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.</p>
<p>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.</p>
<p>For the Palestinian people, the long-denied justice cannot arrive soon enough.</p>
</div><p>
<em>Ramzy Baroud is a journalist and the Editor of The Palestine Chronicle. He is the author of five books. His latest is “</em><a href="https://www.amazon.com/These-Chains-Will-Broken-Palestinian/dp/1949762092"><em>These Chains Will Be Broken</em></a><em>:
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 </em><a href="http://www.ramzybaroud.net/"><em>www.ramzybaroud.net</em></a><em> </em>
<em>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. </em>
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