UPDATE March 1st: The Biden administration has not yet removed the Trump sanctions on the ICC after one month in the White House. Netanyahu, in a phone call with Biden on February 17th, lobbied the President to maintain the sanctions so as to deter the ICC from prosecuting Israelis involved in war crimes. The Biden administration also wants to impede the ICC’s investigation into US war crimes in Afghanistan.
This week, the International Criminal Court ruled it has jurisdiction over the occupied Palestinian territories and will launch an investigation into alleged war crimes committed by both sides during the last 2 decades. The decision by the ICC is significant in a number of ways and offers some hope that Palestinians may get justice after decades of brutally violent occupation. This has predictably led to accusations of anti-Semitism from Netanyahu, the Prime Minister of Israel, as well as attempts by the US & other allies to undermine this decision, while Israeli human rights groups have welcomed the news. In this article, I will examine the ICC’s decision, the reaction of Israel’s allies and what it may mean for Palestinians.
After years of waiting, the International Criminal Court ruled that it does indeed have jurisdiction over what is internationally recognised as Palestine. This will allow the court to launch an official investigation into war crimes committed within the Palestinian territories including Gaza, the West Bank and East Jerusalem. In 2015, following the signing of the Statute of Rome (the treaty which established the ICC), the Palestinian’s request to join the ICC was granted. Under this statute, the Palestinians submitted themselves to the jurisdiction of the ICC, which can prosecute war crimes and crimes against humanity committed since 2002, including crimes committed by Palestinian groups.
In 2019, the ICC concluded a preliminary enquiry into alleged war crimes finding that there was sufficient evidence to open a full investigation. The chief prosecutor, Fatou Bensouda, has indicated investigations will be conducted into both the actions of the Israeli Defense Force and Palestinian groups such as Hamas, who have been accused of firing rockets indiscriminately from the Gaza strip into southern Israeli towns. Although Israel’s litany of alleged war crimes stretches back decades, the ICC will seemingly focus on three key events — the war on Gaza in 2014 in which over 2,200 Palestinians were killed (including over 500 children) with 67 soldiers and 6 civilians killed on the Israeli side, the Great March of Return protests in 2018/19 in which Israeli snipers killed over 200 Palestinians (1 Israeli soldier was killed by a Hamas sniper), as well as the expansion of illegal settlements in the West Bank and East Jerusalem.
There is, however, reason to be pessimistic as previously Bensouda backed away from investigating Israel for war crimes over the killing of 10 activists on the ‘Mavi Marmara’ ship despite repeated appeals from judges, citing the ‘(in)sufficient gravity’ of this case. The ‘Mavi Marmara’ was the lead ship in a flotilla attempting to break the siege of Gaza in 2010, and despite preliminary investigations finding it was likely that war crimes were committed in the attack by Israeli special forces, no action was taken. Bensouda will also be retiring in June 2021 from the ICC and therefore the prosecution of these crimes may well fall to the new Chief Prosecutor, yet to be named.
In predictable fashion, the US and Canada have already come to the defense of Israel. The US State Department was quick to release a statement reasserting that Palestine does not qualify as a ‘sovereign state’ and therefore, it does not have the same rights. Implicitly, the suggestion is that Palestinians should not have protection under international human rights law. It remains to be seen what the US will do to interfere in the ICC’s judicial process as already in September 2020, the Trump admin placed sanctions on several ICC officials including the Chief Prosecutor. This was due to the ICC’s moves to investigate alleged war crimes committed by US troops in Afghanistan, as well as potential future investigations on alleged war crimes in Palestine.
Trump’s executive order in June 2020, which was designed to coerce the ICC to back off investigating the US and its allies for alleged war crimes, authorised the seizure of assets and family entry bans of any ICC officials involved. It appears that only war crimes of official enemies are permitted to be investigated or condemned. This is nothing new however, as the US regularly undermines and/or breaks international law to suit its own agenda. Take for example, the ‘Hague Invasion Act’, signed into law by Bush in 2002, which authorises military force to liberate any US citizens (or that of their allies) being held by the ICC. More recently, the US has recognised Israeli sovereignty over territories captured during wars — which is a crime under international law (e.g., the Golan heights from Syria, the recognition of all of Jerusalem as the capital of Israel). These are decisions that Biden’s Secretary of State has implicitly endorsed and will not reverse.
Indeed, Israel itself is fearful of its own officials being prosecuted for war crimes, even going so far as to draw up a list of up to 300 officials who are at risk of arrest should they travel internationally. Israel has a history of attempting to undermine and disrupt any ICC investigation into alleged war crimes. More recently, this has taken the form of secret lobbying of countries by both Israel’s Foreign Minister, Ashkenazi, and Prime Minister, Netanyahu. Canada’s Justin Trudeau was only too happy to comply with Netanyahu’s requests denying the Palestinians any recourse to justice under international law in a similar reasoning to the US, as was Australia, with several more usual suspects expected to follow. Israeli human rights groups have overwhelmingly welcomed the ICC ruling, and it comes at a time when the biggest Israeli human rights group, B’Tselem, declared Israel as an apartheid state. As mentioned, Israel’s latest offensive against the remit of international law is but the latest chapter in a long history of attempting to undermine international tribunals, the ICC, or any individuals involved in these. Should the ICC fail to investigate and/or prosecute alleged war crimes in the West Bank, Gaza and East Jerusalem, what other recourse do millions of Palestinians have when faced with a violent and seemingly unending occupation?
On one hand, the Israeli government claims there is no occupation of Palestine, while on the other, holds that the ICC has no jurisdiction over these territories as Israel is not a member of the ICC and Palestine is not a state (despite being recognised as a state in the UN General Assembly). Precisely because it is crimes in the Palestinian territories which are subject to investigation, Israel’s objections would appear to be baseless. However, as Israel continues to manufacture reality on the ground, through official recognition of illegal settlements in the West Bank and the slow creep of ethnic cleansing by village demolitions & evictions, de-facto annexation continues apace.
The Israeli government has made no secret of its desire to officially annex large swathes of the West Bank (what they refer to as Judea and Samaria) and East Jerusalem while including as few Palestinians as possible. Indeed, Trump’s now defunct Middle East ‘Peace’ plan, detailed precisely the area that Israel is attempting to steal — the fertile lands of the Jordan valley bordering the Jordan river, and around the Dead Sea, as well as the entirety of Jerusalem. Included in this plan is the official annexation of illegal settlements (both officially recognised and not) currently housing nearly 700,000 settlers, connected by a network of highways, tunnels, and bridges which in many cases Palestinians are not permitted to use or it is pointless to attempt to use due to restrictions on permits to enter Jerusalem and beyond.
The network of settlements and communications which dissect the West Bank often not only by-pass Palestinian communities, but also divide them from one another, making traveling short distances in the West Bank very difficult. What Israel envisages for the West Bank is akin to apartheid South Africa’s network of ‘Bantustans’, or the territories set-aside for black South Africans to live in segregated ghettos in deprived areas of South Africa. This arrangement leaves Palestinian villages and towns completely cut-off from one another, with the populace forced to use dirt roads and herded like cattle through 100’s of Israeli checkpoints which dot the West Bank. It offers no hope of a culturally cohesive and communal Palestinian state. In other words, a viable, contiguous state is impossible under this settler-colonial ideology.
For Palestinians, the decision by the ICC offers some hope that they may get justice after decades of brutally violent occupation. In purely symbolic terms, it may lead to the further international recognition of Palestinian rights and solidify that of the pre-1967 borders as the lines upon which any future Palestine will emerge. It may also have positive repercussions in growing support for the BDS (Boycott, Divestment & Sanctions) movement — a non-violent, Palestinian-led, international solidarity movement modeled on the boycott movement which was successful in helping to end South African apartheid. This is Israel’s worst nightmare — international pressure as they race to establish what they see as irreversible ‘facts on the ground’ through illegal settlement expansion, demolitions, forced evictions and ultimately annexation.
However unlikely it is that any ICC prosecutions will change daily life for Palestinians, it also offers further hope that Israeli impunity for committing war crimes and crimes against humanity is coming to an end. The daily ritual humiliation under occupation — the extremist settler violence, the evictions & demolitions, the almost weekly shootings of unarmed civilians, the imprisonment of men, women and children without trial or justification, the torture endured under military law — are just some of the depravations Palestinians are regularly subjected to. The utter immorality of Israel’s settler-colonial project — Zionist political ideology from late 19th century imperialist mentality — means it is a moral imperative for the world to support the ICC’s efforts to prosecute war crimes. However, it remains to be seen whether the ICC will be able to push ahead with any prosecutions stemming from investigations in the occupied Palestinian territories or will the US & Israel’s campaign of intimidation and diplomatic pressure pay-off.
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