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 Defence Force (IDF).
It is important to point out 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.
Will there be an investigation?
There are a number of issues that the ICC will have to take into consideration before launching an investigation.
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First is the question of jurisdiction. It has to be determined whether the conduct in question falls within the crimes set out in the Rome Statute. On July 23, the outgoing UN High Commissioner for Human Rights, Navanethem Pillay, condemned both Israel and Hamas for failing to protect civilians and 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-defence, but it is difficult to understand how the targeting of a hospital or a school constitutes a legitimate military target. There is also strong evidence of Israel targeting unarmed civilians, including children.
While the debate will continue for some time, 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.
Second, the ICC is limited to dealing with crimes that have occurred since the Rome Statute went into effect on July 1, 2002. This requirement has been clearly met.
Third, the ICC has to weigh territorial jurisdiction; that is, whether the state in question has ratified or accepted the jurisdiction of the ICC or the situation has been referred to the ICC following a UN Security Council resolution.
There is a provision according to which the ICC can exercise jurisdiction over “The State of which the person accused of the crime is a national.” For example, if the ICC gained jurisdiction over Palestine (either by state party referral, Security Council referral, or proprio motu request), it could have jurisdiction over an Israeli committing a war crime on Palestinian territory even though Israel remains a non-state party.
Conversely, the court could have jurisdiction over a British or French national accused of having committed crimes on Palestinian or Israeli territory, as the UK and France are state parties.
While Israel is not a state party, the Palestinian Authority has issued a declaration accepting the ICC jurisdiction over Palestine. Palestine has a non-member observer status at the UN and in April 2014 sought to ratify a number of international treaties including the Geneva Conventions.
Palestine’s acceptance of ICC jurisdiction 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 statute.
Many countries, as well as UNESCO, have now recognised Palestine as a state. That, in addition to 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. This is not likely to be an easy decision and significant pressure is likely to be exerted by the US and Israel.
In the event that this argument fails, Palestine would need to seek a UNSC referral. This of course is far from assured.To enable such a resolution to be passed, the five permanent members must agree not to veto. Considering that only two permanent members are state parties and two others (US and Russia) have vested interests in supporting Israel, it is unlikely to succeed.
Moreover, the US recently voted against a UN Human Rights Council resolution calling for an international investigation in Gaza, and the UK and France abstained. It should also be recalled that while the US recently supported a French-sponsored resolution for the situation in Syria to be referred to the ICC, this was on the condition that such a referral would not include any potential investigations into alleged crimes in the Golan Heights.
It is therefore clear that any proposed resolution in the UNSC is unlikely to succeed, notwithstanding the scale of casualties on both sides.
In terms of ensuring accountability, let us not forget where the current military campaign started. The recent incursion by Israel followed the tragic abduction and murder of three Israeli teenagers. This was followed by mass arrests of Palestinians which culminated in the abduction and brutal murder of a Palestinian teenager. Both sets of circumstances were tragic and require justice to take its natural course.
Should the ICC refuse to investigate, then the international community, and in particular the US, will have to revaluate its policies towards Israel.
The support that US and other western countries lends to Israel allows it to disregard accusations that it has breached international law on many occasions.
The fear of confronting Israel and its appalling human rights record must stop. It 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 criticise Israel for its disregard for human rights protection and accuse it of 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 in the conflict have now engaged in conduct that may constitute war crimes. 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, the international community will have to come up with a comprehensive and long-term strategy to settle the conflict and deliver justice for the crimes committed.
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.
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