ICC takes key step toward justice for the Palestinians - Article by Chris Doyle in Arab News, 8 February 2022
The Palestinian herders of Khirbet Humsah in the Jordan Valley should have a quiet life. Unfortunately, they find themselves living under Israeli occupation and in an Israeli firing zone. They are meant to just leave. In November last year, Israeli forces demolished their homes, making 74 people, including 41 children, homeless. The Israeli bulldozers repeated the dose last week, leading the EU mission in the country to speak of a threat of “forcible transfer” — a war crime.
Other Palestinians also face forced removal and the destruction of their properties. They attempt to fight this, at great cost, through an Israeli court system that is stacked against them. They have little to no hope of getting any redress via this route, but have no other choice.
However, a small chink of light has opened up. Just one day after Khirbet Humsah’s latest round of demolitions, the Pre-Trial Chamber of the International Criminal Court (ICC) determined that the court has jurisdiction over the territories Israel occupied in 1967 after a request for a ruling from the Office of the Prosecutor. The issue of territorial jurisdiction is not over, as it can be raised later on in the court’s proceedings, but this is an important step.
The prosecutor can now open a formal investigation. This means that the ICC could take forward a case against any party deemed to have potentially committed war crimes in Palestine. It is a criminal court so its investigations are not against states, but against individuals suspected of criminal behavior. Importantly, sovereign immunity does not apply in ICC cases, so heads of state and government are vulnerable.
The Israeli propaganda machine was in full flow in response, arguing that the ICC should not be investigating Israel. It is not. It has just established it has jurisdiction in the Occupied Territories. The leaders of Palestinian groups such as Hamas and Islamic Jihad could also be investigated. The prosecutor has determined there is a reasonable case to answer about the involvement of these two groups in war crimes, given that they have targeted Israeli civilians with rockets and mortars. However, as both groups are designated as terrorist organizations by many countries, it is hard to imagine that their leaders will view the ICC as a greater threat than Israeli bombs and assassination squads. Nevertheless, it might shrink the available space where their external leaderships might feel safe. Host countries may not be so welcoming.
The next lame argument deployed by those who want immunity for Israel was asking why the court is not investigating countries such as China. The answer is obvious: The ICC should and probably would if it could but, as China is not a state party to the Rome Statute, the UN Security Council has to refer it, which is unlikely given that Beijing has a veto. Just because the court cannot take forward a case against one party, does not mean that all others accused of war crimes should be allowed to walk away.
The Israeli position is all over the place. On the question of coronavirus disease vaccines, it treats the Palestinian Authority as if it is a state and is solely responsible; but on the question of jurisdiction for the ICC, Israel argues Palestine has none.
Netanyahu theatrically, as is his wont, claimed the ICC’s decision was “pure anti-Semitism,” itself a classic example of conflating Israeli crimes with all Jews. This can hardly be taken seriously coming from a man who courts leaders such as Viktor Orban, whose anti-Semitism never seems to be a concern. Netanyahu does not care that it insults and degrades the memory of all those who have died in anti-Semitic atrocities, from pogroms to the Holocaust. Accountability for war crimes is in the finest traditions of those who never want to see man’s inhumanity to man replicated ever again.
Israeli leaders may be investigated for a multitude of violations. These include actions in the 2014 war against Gaza, when more than 2,000 Palestinians were killed and 10,000 wounded. This might be trickier than other potential breaches, given the fog of war and establishing command responsibility. Less complicated will be the illegal settlements. Israel does not dispute the existence of settlements, which are a grave breach of the Fourth Geneva Convention and a war crime under the Rome Statute as a matter of fact. More than 250 settlements and almost 700,000 settlers prove the point. The forcible transfer of communities should also be investigated, as well as the transfer of Palestinian prisoners out of occupied territory.
Will it restrain Israel at all? Israeli leaders are already concerned about travel overseas as a result of cases invoking universal jurisdiction. The ICC, however, pursues those at the top — the people responsible for the policies. In theory, warrants could be issued for the prime ministers, defense ministers and senior military commanders who gave the orders for settlement building, for example.
The attitude of the Biden administration will be telling. The US has refused to sign up to the Rome Statute. Infamously, President Donald Trump decided to impose sanctions on ICC officials last year. As yet, Joe Biden has not reversed these decisions, although he has them under review. No doubt the US position toward the court will be partly determined by whether or not it pursues the actions of the US military and CIA in Afghanistan.
The broader issue is that the ICC might, for the first time, tackle the thorny issue of Israel-Palestine and dare to hold accountable a major power in Israel. In its earliest years, the ICC seemingly focused solely on African states. Taking on non-African leaders is vital for its credibility. This is why an investigation into the actions of US personnel in Afghanistan should go forward.
The ICC route is a long journey. Justice, if it arrives, will not come quickly. One issue in particular could cause delays — resources. The prosecutor may lack the resources to go forward, as has been the case with Nigeria and Ukraine.
Though this decision may not delight the big powers, it will certainly infuse the court with greater legitimacy and credibility, as it starts to tackle those who have, for so long, considered themselves above the law. It is a small victory for the people who have nothing, whose homes and lives can get ruined by those who have nothing to fear, for whom the ICC is a court of last resort. Who knows, when these Bedouin tents and shacks are put back up, the Israeli soldiers may not be quite so keen to act next