West Asia

ICC to investigate Israeli war crimes in occupied Palestinian territories

Print edition : March 26, 2021

Outside the Khan Yunis hospital in the southern Gaza Strip on July 29, 2014, two Palestinians injured in Israeli air strikes. Photo: Bilal Telawi/AFP

Israeli Prime Minister Benjamin Netanyahu. Photo: THOMAS COEX/AFP

Prosecutor Fatou Bensouda at the ICC in The Hague, Netherlands. Photo: Bas Czerwinski/AP

The International Criminal Court has ruled that it has the jurisdiction to investigate all of Israel’s actions, including possible war crimes and building of settlements, in the Palestinian territories it annexed after 1967.

In the first week of February, the international Criminal Court (ICC) issued a landmark ruling that said it would investigate possible war crimes committed by the state of Israel in occupied Palestinian territory. The ICC ruled that its jurisdiction extended to all the Palestinian territories Israel annexed after the June 1967 Arab-Israeli War. The ruling was made on the basis of the recommendations that Fatou Bensouda, the ICC’s chief prosecutor, made in 2019. She had said that there was “a reasonable basis” to investigate the war crimes the Israeli occupation forces had committed in Jerusalem and in the three military campaigns the Jewish state had launched against the blockaded Gaza Strip in the last two decades. The prosecutor also characterised the building of illegal settlements in the occupied West Bank as “a war crime”.

Fatou Bensouda started her investigations in 2015 when Palestine was admitted into the ICC following the United Nations General Assembly’s granting of “non-member observer state” status to Palestine in 2012. She has said that there “is reasonable basis to believe” that Israel used “disproportionate force” in the 2014 war in Gaza and in its settlement activities in the occupied West Bank and East Jerusalem. The ICC is also investigating Israel’s brutal response to the protests along its border fence on the Gaza border in 2018. In 2009, a U.N. panel under the chairmanship of Richard Goldstone, a retired judge of the South African Supreme Court, inquired into the Israeli military assault that year on Gaza and came to the conclusion that Palestinian civilians were deliberately killed. The Goldstone report detailed the targeting of civilians and the Israeli army’s destruction of civilian infrastructure, including homes, wells and a sewage treatment plant.

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The report had concluded that the Israel Defence Forces (IDF) “had waged a deliberately disproportionate attack designed to punish, humiliate and terrorise a civilian population, radically diminish its economic capacity both to work and to provide for itself, and to force upon it an ever-increasing sense of dependency and vulnerability”. Goldstone, who is Jewish, suddenly distanced himself from the report two years after its publication following intense pressure from Israel and the influential Jewish diaspora. The Jewish community ostracised Goldstone. But the entire world had seen the carnage the IDF inflicted on the hapless residents of Gaza during the three invasions it conducted on the impoverished Gaza Strip. The havoc wrought on Gaza in the 40-day-long conflict in 2014, in which more than 400 Palestinian children were killed, was the worst.

Palestinians denied vaccines

In the occupied territories, Palestinians have been denied basic human rights, including freedom of movement, health care, housing, education and equality under the law. More than half of Israel’s population of nine million has been inoculated against COVID-19, and surplus vaccines are being given away to countries with which Israel wants to cultivate closer ties. Among the recipients of Israeli vaccine largesse are countries such as Hungary and Guatemala. The Israeli authorities are wilfully ignoring the Palestinians in the occupied territories even as the pandemic is raging there. More than 2.5 million Palestinians live in the occupied West Bank and another 2 million in Gaza. Under the fourth Geneva Convention, occupying powers are obligated to ensure the public health of the people under their control.

The ICC will also be looking into alleged crimes the Palestinian Authority (P.A.) committed in the West Bank. The P.A.’s security force, trained by the United States, had in the past imprisoned and mistreated Palestinians opposed to the Oslo peace agreement, under the terms of which the P.A. and Israel had to engage in security cooperation. The ICC will also be investigating the Hamas in Gaza. The ICC has deemed that the firing of rockets and missiles into Israel from Gaza can also come under the ambit of war crimes. After submitting her report to the ICC in 2019, Fatou Bensouda asked it to determine whether it had the jurisdiction to pursue the case. She will be stepping down as ICC chief prosecutor in June and will be succeeded by the British barrister Karim Khan.

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The precedent-setting judgment of the ICC shook the Israel government. Prime Minister Benjamin Netanyahu was quick to criticise the ICC’s ruling in the strongest terms, describing it as a political move without any legal basis. “Today the court proved once again that it is a political body and not a judicial institution,” Netanyahu said in a statement. In a speech delivered later on television, he went to the extent of characterising the court as “an anti-Semitic institution” and vehemently denying that Israel had ever committed war crimes. He claimed that Israel was “a state with a firm democratic regime, which sanctifies the rule of law and is not a member of the court”. There are reports that Israel is planning to pass a law that will ban any cooperation with the ICC and is proposing a five-year jail term for any violation of the law. The proposed law will be modelled after the American Service-Members’ Protection Act, 2002, which gives the U.S. President wide-ranging powers to protect American citizens, including the use of force, in case the ICC prosecutes them. The U.S.’ war crimes far exceed those of Israel or any other country in the last 70 years. Israel fears that the ICC could call hundreds of senior military officials for questioning and try them for war crimes.

Israel’s war crimes since its creation have been well documented, not only in the occupied territories but also in neighbouring countries. According to the Israeli newspaper Haaretz, the Israeli government has drawn up a list of hundreds of its officials who could potentially be investigated and face trial. Haaretz has mentioned the prominent names figuring in the list, including the Prime Minister and the current Defence Minister, Benny Gantz. Palestinian human rights groups want a quick trial of Israeli officials accused of war crimes and say that the “files are already there” on the Israeli officials involved in war crimes.

Impartial tribunal

The ICC has stressed that it is an impartial tribunal whose job is to investigate “dangerous” crimes that seriously infringe international law. Israel had launched a vitriolic propaganda campaign against the ICC ever since Palestine was allowed entry into the court. Israel is among the countries that opted not to join the ICC, the other notable ones being the U.S., China, India and Russia. India had participated actively in the drafting of the Rome Statute, which led to the creation of the ICC. The Indian government feared that becoming a full-fledged member could expose it to the ICC’s jurisdiction in places such as Kashmir.

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After the ICC verdict, Netanyahu wrote to his “great friend” Prime Minister Narendra Modi to solicit support “to stop this assault on justice and common sense”. According to reports, India has so far chosen to remain neutral on the issue. Six years ago, after a phone call from Netanyahu to Modi, India abstained from a U.N. Human Rights Council (UNHRC) resolution condemning Israel for violation of international law. The European Union (E.U.) states represented in the council along with Russia and China voted for the resolution criticising Israel for its human rights violations. The Indian External Affairs Ministry claimed at the time that India remained supportive of the Palestinian cause but chose to abstain because “there was a reference to the ICC” in the UNHCR resolution. “India is not a signatory to the Rome Statute,” the Indian External Affairs Ministry spokesman had said. Reference to the ICC had not prevented India from voting in favour of U.N. resolutions before that. Before the Modi government came to power, India had voted in favour of all pro-Palestinian resolutions in the U.N.

Netanyahu is claiming that the ICC has no authority to make a ruling as the Palestinians do not have statehood. The court, however, made it clear that its February ruling was not related to the issue of Palestinian statehood. The U.S. too came out in support of its close ally, Israel, on the issue. The U.S. State Department expressed its “serious concerns” about the ICC’s decision to investigate Israeli war crimes in the occupied territories. The Trump administration had stopped referring to the West Bank and Gaza as occupied territories and had even imposed sanctions on Fatou Bensouda last year.

On Israel, there has not been any perceptible change in U.S. policy after the exit of President Donald Trump. The Biden administration is however reviewing Trump’s sanctions on the ICC prosecutor. Both President Joseph Biden and Vice President Kamala Harris are staunch supporters of Israel. The Biden administration put human rights in the forefront while reassessing ties with Saudi Arabia but is applying a different yardstick with regard to Israel. The U.S. decided to temporarily suspend weapons sales to Saudi Arabia but will continue to give billions of dollars in military aid annually to Israel.

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While serving as Deputy National Security Adviser in the Obama administration, Antony Blinken, the new U.S. Secretary of State, boasted on Twitter that the Democrats had “done more for Israel” than any previous administration. During his confirmation hearing, Blinken actually praised the Trump administration’s Israel policy, including the shifting of the U.S. embassy from Tel Aviv to Jerusalem, breaking with the international consensus. Blinken told the U.S. Congress that the Biden administration hopes to “build” on the achievements of the Trump administration in West Asia.

Both Biden and Blinken are opposed to the Boycott, Divestment, Sanctions movement that aims to hold Israel to account for its violation of human rights laws in the occupied territories. After the ICC ruling, the U.S. State Department spokesperson said that the U.S. had always taken the position that “the court’s jurisdiction should be reserved for countries that consent to it, or that are referred to it by the U.N. Security Council”. Besides the U.S., only Canada and Australia have so far openly supported Israel’s hard-line stance on the ICC ruling.

Palestinian praise for ICC

Palestinian Prime Minister Muhammad Shtayyeh welcomed the ICC decision and described it as a victory for justice and a solace for victims of Israeli war crimes. “The ruling is a message to the perpetrators of crimes, that their crimes will not be subject to the statute of limitations and that they will not go unpunished,” he said. Palestinian human rights groups praised the ICC’s “landmark” ruling, stating that “it was a critically important step towards ensuring the rule of law” and towards “ending impunity”. They called for immediate action by the ICC prosecutor “to ensure justice and accountability” for Palestinian victims. The E.U. has so far taken an independent stance supportive of the ICC, saying that it strongly supported the ICC and its independence. “Both the ICC and its prosecutor are independent and impartial judicial institutions with no political objectives to pursue,” the E.U. statement said. In late February, the Palestinians called on the ICC to speed up its investigations on new war crimes that Israel was committing in the occupied territories. Israel has been on a demolition spree in East Jerusalem and the Jordan Valley. The Palestinian Foreign Ministry said that the demolition of Palestinian property in these areas was part of the Israeli plan to annex more Palestinian territory.

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