Rights groups say Israel is using excessive force against Palestinian civilians in the recent wave of violence.
Al Jazeera spoke to international lawyer Toby Cadman on Israel’s use of force against Palestinians as clashes continue in the occupied Palestinian territories.
Al Jazeera: Amnesty International told Al Jazeera on Sunday that some of the recorded incidents amounted to “extrajudicial killings”. What exactly are the rules of engagement for Israeli soldiers?
Toby Cadman: The ‘Rules of Engagement’ will be specific to the orders given to the Israeli soldiers; however, those rules must be in accordance with general principles of international law and subject to tests of whether any action constitutes an attack on a legitimate target, an act of self-defence, and is proportionate to any risk – or else, there is potential for such conduct to constitute a war crime.
Some of the incidents that have been publicised are of significant concern, and as much as on the face of it they may well amount to extrajudicial killings, we must be wary of making rash decisions without considering all of the available facts available. That said, if the incident are just what is shown on the clips being circulated, they are of very significant concern and do suggest criminal offences have been and are being committed. One of the concerns is that the attacks are retaliatory, are not military targets, and are not proportionate responses to any risk.
Al Jazeera: This is not new. We have seen these videos and killings in the past. Is this not an issue for international courts?
Cadman: This is not new. We have seen videos of numerous attacks on Palestinian civilians including arbitrary arrest, ill-treatment of detainees and extrajudicial killings. I think it is absolutely an issue for the International Criminal Court [ICC] to consider. However, previously they haven’t been able to consider such matters given that the ICC had not been given jurisdiction. The situation is now quite different. Palestine is a state party to the Rome Statute to the ICC and, as a result, any perceived instances of international crimes can be submitted to the Office of the Prosecutor at the ICC for investigation. We know that the ICC prosecutor is actively considering a number of matters involving Gaza, West Bank, and Jerusalem. It is essential that these matters are properly documented with a view to assisting the ICC prosecutor open a formal investigation. While it is a matter within the jurisdiction of the ICC, we cannot expect the ICC to resolve all these problems. Palestine is now a state, and it needs to start acting like one. It needs to establish its own judicial institutions to investigate and prosecute cases of war crimes and terrorism. Israel, as an occupying force, needs to allow Palestine to function as a state.
Al Jazeera: Why is the State of Israel not accountable in these killings? If there are clear violations with witnesses, why have there been no repercussions?
Cadman: Israel is accountable, but they must be held to account on the international level as it is clear that they have no proper intention of dealing with matters internally. As much as the PA [Palestinian Authority] have now signed and ratified the Rome Statute, this should have been done long ago, and further, the international community ought to have addressed the clear impunity many years ago, rather than giving blanket support.
Al Jazeera: How would you proceed from a legal point of view? Would it be up to the PA or individuals, if a family member was killed, to seek justice?
Cadman: The first step must be the call for a domestic investigation. Israel ought to be given the opportunity to address the matter themselves; however, if they fail to do so, then alternative steps can be taken. Palestine needs to establish the institutions to do this. The first step should be to set up an investigative commission that has the jurisdiction to investigate crimes committed by Israelis, Palestinians or others within the occupied territories. It is difficult to advise upon which particular method is best to pursue, but internationally at the ICC, if there is an appropriate case and the case is of sufficient gravity, another state can commence an investigation and bring a prosecution under Universal Jurisdiction where appropriate. These are two examples of avenues that may be pursued. However, it remains my view that there must also be a domestic process with international oversight.
Al Jazeera: From a legal point of view, how do you see this ending?
Cadman: The difficulty is in seeking to convince the ICC prosecutor to commence an investigation into the acts of Israel if such matters are to be pursued externally. I would, however, like to see the PA showing a commitment to justice and, therefore, don’t see any reason why they cannot develop a mechanism, a court, to investigate and prosecute domestically. I would, however, urge caution, that any such mechanism must be credible and, therefore, must investigate ‘all’ those suspected of committing offences, and, therefore, any Palestinian suspect must be investigated and prosecuted where appropriate.
Justice and accountability are an integral element of peace and stability. There can be no lasting peace in Palestine without those responsible for war crimes being held accountable before a credible judicial process.