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Palestine, Israel and the International Criminal Court


Will There Be Justice for Crimes Committed in Gaza?

by Toby Cadman

On July 25, Palestinian officials filed a criminal complaint with the International Criminal Court (ICC) in The Hague. The complaint accuses Israel of war crimes as a result of its ongoing campaign in Gaza, which has now left more than 1,200 Palestinians and 53 Israeli soldiers dead. The filing alleges crimes including the crime of apartheid, attacks against civilians, excessive loss of human life and crime of colonisation.

The immediate response from the Israeli government is that it will need to consider the new filing, but according to Foreign Ministry Spokesman, Paul Hirchson, "The Israeli military is working 100 percent within the dictates of international humanitarian law." There are now counter allegations emerging from Tel Aviv that the responsibility lies with Hamas and not the Israeli Defense Force (IDF).

On 28 July 2014 the United Nations Security Council (UNSC) called for an ‘immediate and unconditional ceasefire’. Israel has however increased its campaign in Gaza and the UN Secretary General, Ban Ki Moon, then expressed serious concern over reports that leaflets are being dropped in Northern Gaza warning civilians to leave. In response to the UNSC resolution Prime Minister Benjamin Netanyahu warned that there would a long conflict ahead - a clear statement that the Israeli military campaign in the Occupied Territories would continue.

On 30 July 2014 two attacks were launched in Gaza by the IDF. First, an attack on a UN protected school that was used to shelter more than 3,000 displaced Palestinians civilians. Second, an attack on the Shejaiya market. The attack on the Gaza market has so far left 17 Palestinians dead and 160 injured. This attack is reminiscent of the February 1994 attack on the Markale market in central Sarajevo that epitomized the Bosnian war, that left 60 dead and 200 injured.

The deadly mortar attack launched by the Yugoslav National Army (JNA) bears striking similarities to the Shejaiya attack, particularly when one considers that the Serb political leadership tried to blame the majority Muslim Bosnian Army in much the same way that the Israeli leadership continues to blame Hamas for the Palestinian casualties. UN Secretary General, Ban Ki Moon, condemned the attack on the school at the Jabaliya camp and stated: "It is outrageous. It is unjustifiable, and it demands accountability and justice." Deputy Secretary-General Jan Eliasson said: "This is a moment where you really have to say: 'Enough is enough.'" It is alleged that Israel had been told on 17 separate occasions that the Jabaliya camp was used to house civilians.

These two incidents, in which there can be no legitimate military objective, may well be the turning point and may cause Israel's traditional partners to review their support in light of the mounting criticism. The UN, already considered by Israel to demonstrate a pro-Palestine bias, is unlikely to take kindly to attacks on its own facilities. In a measured statement, Israel's most vocal partner, the US, condemned the shelling of the school, but also condemned Hamas for hiding weapons in UN facilities. This is something that will need to be investigated.
Questions are now being asked as to whether the ICC will open an investigation.

The first point to note is that the ICC investigates situations and therefore if it opens an investigation it will look into the conduct of all sides to the conflict including Hamas, IDF and other groups involved in the hostilities. It will then determine responsibility and this include Israeli civilian and military leaders as well as those of Hamas.

The next question is one of jurisdiction. Whilst the conduct of both sides may well constitute war crimes (or crimes against humanity) the question is whether the ICC Prosecutor will have jurisdiction to conduct an investigation. The jurisdiction of ICC is rather complex and frequently misunderstood. The Court’s jurisdiction is divided into four categories. First, subject matter jurisdiction, namely whether the conduct in question falls within the crimes set out in the Rome Statute. This question will focus on whether the military campaign in Gaza constitutes crimes within the jurisdiction of the ICC. On 23 July 2014 the outgoing UN High Commissioner for Human Rights, Navanethem Pillay, in an emergency session at the UN Human Rights Council, condemned both Israel and Hamas for failing to protect civilians. She stated that “there seems to be a strong possibility that international law has been violated, in a manner that could amount to war crimes.”

The Israeli position is that it has only selected military targets and is acting in self-defense. Looking at these statements in turn. The 18-day campaign has resulted in over 1,300 deaths. The Israeli Defense Forces (IDF) has targeted schools, hospitals and residential buildings. It is difficult to understand how the targeting of a hospital or a school constitutes a legitimate military target. It has been reported that a dozen shells hit the Al Aqsa hospital in the town of Deir el-Balah, killing 4, and wounding another 60. In this particular attack, shells hit the administrative building, the intensive care unit, and the surgery department. There is also footage of four children killed on a beach in Gaza.

This would appear to demonstrate neither restraint nor military targeting. Further, we must not forget that there are also serious allegations that Hamas has targeted civilians and that such attacks also constitute war crimes. Whilst the debate will continue for a while there does not appear to be any dispute, irrespective of whether one adopts the Palestinian or Israeli line, that crimes within the jurisdiction of the ICC have been committed. Both sides will argue self-defense, and no-one should expect any nation, Israeli or Palestinian, to withstand thousands of rockets being fired into residential neighbourhoods as part of a campaign of terror, but whilst that may constitute a defense to a potential war crimes charge, it will be an evidential question not a question of jurisdiction. It would therefore appear clear that the crimes under consideration fall into the category of crimes under the Rome Statute.

Secondly, temporal jurisdiction, namely whether the crimes were committed after the entering into force of the Rome Statute on 1 July 2002. It is clear that this requirement is met.

Thirdly, territorial jurisdiction and this may be demonstrated where the State in question has ratified or accepted the jurisdiction of the ICC or the situation has been referred to ICC following a UNSC resolution. Neither Israel nor Palestine is a State Party. Whilst Israel has positively decided not to become a State Party, the Palestinian Authority has previously cited its intent to do so. Palestine has non-member observer status to the UN and in April 2014 sought to ratify a number of international treaties, including the Geneva Conventions. It has previously issued a declaration accepting ICC jurisdiction over Palestine.

Finally, personal jurisdiction. The ICC can exercise jurisdiction over “The State of which the person accused of the crime is a national.” In this regard, it is noted that the Court may exercise jurisdiction over a State’s territory or nationals; both do not have to be present to give the Court jurisdiction. For example, if the Court gained jurisdiction over Palestine (either by State Party referral, Security Council referral, or proprio motu request), the Court could have jurisdiction over an Israeli committing a war crime on Palestinian territory even though Israel is a non-state party.

Conversely, if jurisdiction were triggered the Court could exercise jurisdiction over, hypothetically, a British suspect accused of having committed crimes on Palestinian or Israeli territory even though neither Palestine nor Israel are State Parties to the ICC. Jurisdiction would be triggered by the fact that the UK is a State Party in much the same way that the ICC Prosecutor has opened a preliminary inquiry into Iraq insofar as it concerns the conduct of the British Armed Forces. Considering that there are credible allegations citing British recruits into the IDF this may be more than a hypothetical situation.

In terms of the Palestinian Authority’s declaration accepting jurisdiction, this was not accepted in 2012 as the former ICC Prosecutor, Moreno Ocampo, could not make a determination on whether Palestine was a State within the meaning of the Rome Statute and further consideration was deferred to the UN Secretary-General.

The granting of special status in the UN may now give the new ICC Prosecutor, Fatou Bensouda, the cover she needs to open a preliminary inquiry into crimes committed since 1 July 2002. This is not likely to be an easy decision and the UN will most likely be pressured by the US and Israel to rule otherwise and support is likely to be found in other western powers such as the UK, France and Canada, all of whom have expressed concern for ICC membership in the past. This is further complicated by représentations made by the Palestinian President, Mahmoud Abbas, in 2012 to several countries, following, what many consider to be undue pressure, that they would not use their special status to become signatories and thus pursue an action in the ICC. However, as many States, as well as UNESCO, have now recognised Palestine as a State, it may be difficult for the ICC Prosecutor to resist, particularly in light of the mounting scale of atrocities on both sides. With more than a thousand victims and Israel now increasing the intensity of its campaign, it will be difficult for the ICC Prosecutor to look away.

In the event that the Statehood argument fails, the next step would be seeking a referral by the UNSC. This of course is not an easy step. To enable such a resolution to be passed the five permanent members must agree not to wield the power of a veto. Considering that only two permanent members (UK and France) are State Parties and two others (USA and Russia) have vested interests in supporting Israel, it is unlikely to succeed. Recently, the US voted against a UN Human Rights Council resolution calling for an international investigation in Gaza and the UK and France abstained. Further, a recent UNSC resolution concerning the escalation of hostilities and calling for an immediate ceasefire was devoid of any real condemnation. It should also be recalled that whilst the US recently supported a French-sponsored resolution for the situation in Syria to be referred to the ICC, this was conditional that such a referral would not include any potential investigations into alleged crimes in the Golan Heights that could engage Israeli responsibility.

It is therefore clear that any proposed resolution will most likely fail, notwithstanding the scale of civilian casualties on both sides.

In terms of ensuring accountability, let us not forgot where the current military campaign started. It was not a move by either faction to defend its own physical integrity. The recent incursion by Israel followed the tragic abduction and murder of 3 Israeli teenagers. allegedly by Hamas. This was followed by mass arrests of Palestinians which culminated in the abduction and murder of a Palestinian teenager. Both sets of circumstances were tragic and require justice to take its natural course.

As noted above however the question remains what is to be done, and how can the undoubted victims of the recent incursion seek justice. The first step is with the recent complaint filed with the ICC currently under consideration. Should the ICC refuse to investigate and the UNSC refuse to refer the situation to the ICC, then the international community, and in particular the US, will have to take a long hard look at its policy towards Israel and consider how long they will allow the State to continue to act with such impunity. They will also need to take a long hard look at the peace process and how to achieve some form of stability in such a divided region.

Regardless of the political posturing and the argument about whether the actions of Israel are justified or lawful, the fact still remains that hundreds upon hundreds of innocent men, women, and children are losing their lives in a conflict in which the Israeli Government has already been deemed to have repeatedly fallen foul of international law in terms of the unlawful occupation and encroachment on Palestinian Territory. Given the stance taken by some members of the international community one can be forgiven for seeing why Israel sees such comments as meaningless.

Israel, and to a certain extent its international partners, consider that there is an anti-Israel bias, particularly demonstrated by the UN. This argument has little credibility when one considers the criticisms certain States face for lesser conduct. This fear of confronting Israel and its appalling human rights record needs to be confronted without fear of appearing part of an anti-Israel bias. Such an argument has no real basis. Israel must be subject to the same high standards as the rest of the world. By the same token so must Palestine. If one is to criticize Israel for its blatant disregard for human rights protection and condemn it for its apartheid policies, the targeting of Israeli civilians and any anti-Semitism must be equally condemned. The same standards must apply universally.

It is clear that both sides to the conflict have now engaged in conduct that may well constitute war crimes and should come before the ICC. There is an overwhelming need for a system of truth, justice and accountability. In the event that the ICC Prosecutor is not granted the authority to investigate the situation in Palestine what will be needed is a comprehensive and long-term strategy.

Any brokered ceasefire will have little chance of success and there will not be long-term stability unless those responsible, on both sides of the conflict, are brought to justice through a credible process.

Toby Cadman is an international criminal law specialist. He is a barrister member at Nine Bedford Row International Chambers in London and a member of the International Criminal Bureau in The Hague. 

Follow him on Twitter: @tobycadman

* An abridged version of this article was published by Al Jazeera

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