Prefatory Note: “Palestine’s Dilemma: To Go or Not to Go to the International Criminal Court” was published on July 13, 2014 on the website of Middle East Eye, a site I strong recommend to all those with an interest in Middle East issues; this article represents a somewhat revised text, but within the framework of the original; the political plausibility of invoking the International Criminal Court to investigate allegations of criminality directed at Israel increases with each passing day.
Ever since this latest Israeli major military operation against Gaza started on July 8, there have been frequent suggestions that Israel is guilty of war crimes, and that Palestine should do its best to activate the International Criminal Court (ICC) on its behalf. The evidence overwhelmingly supports basic Palestinian allegations—Israel is guilty either of aggression in violation of the UN Charter or is in flagrant violation of its obligations as the Occupying Power under the Geneva Convention to protect the civilian population of an Occupied People; Israel seems guilty of using excessive and disproportionate force against a defenseless society in the Gaza Strip; and Israel, among an array of other offenses, seems guilty of committing Crimes Against Humanity in the form of imposing an apartheid regime in the West Bank and through the transfer of population to an occupied territory as it has proceeded with its massive settlement project.
Considering this background of apparent Israeli criminality, it would seem a no-brainer for the Palestinian Authority (PA) to seek the help of the ICC in waging its struggle to win over world public opinion to their struggle. After all, the Palestinians are without military or diplomatic capabilities to oppose Israel, and it is on law and global solidarity must rest their hopes for eventually realizing their rights, particularly the right of self-determination and the right of return. Palestinian demonstrators in the West Bank are demanding that their leaders in the Palestinian Authority adhere to the Rome Statute, and become members of the ICC without further delay. It has become part of the message of Palestinian street politics that the Palestinians are being criminally victimized, and that the Palestinian Authority if it wants to retain the slightest shred of respect as representatives of the Palestinian people must join in this understanding of the Palestinian plight and stop ‘playing nice’ with Israeli authorities.
Such reasoning from a Palestinian perspective is reinforced by the May 8th letter sent by 17 respected human rights NGOs to President Mahmoud Abbas urging Palestine to become a member of the ICC, and act to end Israel’s impunity. This was not a grandstanding gesture dreamed up on the irresponsible political margins of liberal Western society. Among the signatories were such human rights stalwarts as Human Rights Watch, Amnesty International, Al Haq, and the International Commission of Jurists, entities known for their temporizing prudence in relation to the powers that be.
Adding further credence to the idea that the ICC option should be explored was the intense opposition by Israel and United States, ominously threatening the PA with dire consequences if it tried to join the ICC, much less to seek justice through its activating its investigative procedures. The American ambassador to the UN, Samantha Power, herself long ago prominent as a human rights advocate, revealed Washington’s nervous hand when she confessed that the ICC “is something that really poses a profound threat to Israel.” I am not sure that Power would like to live with the idea that because Israel is so vulnerable to mounting a legal challenge that its impunity must be upheld whatever the embarrassment to Washington of doing so. France and Germany have been more circumspect, saying absurdly that recourse to the ICC by Palestine should be avoided because it would disrupt ‘the final status negotiations,’ as if this pseudo-diplomacy was ever of any of value, a chimera if there ever was one, in the elusive quest for a just peace.
In a better world, the PA would not hesitate to invoke the authority of the ICC, but in the world as it is, the decision is not so simple. To begin with, is the question of access, which is limited to states. Back in 2009, the PA tried to adhere to the Rome Statute, which is the treaty governing the ICC, and was rebuffed by the prosecutor who turned the issue over to the Security Council, claiming a lack of authority to determine whether the PA represented a ‘state.’ Subsequently, on November 29th the UN General Assembly overwhelmingly recognized Palestine as ‘a nonmember observer state.’ Luis Moreno–Ocampo who had acted in 2009 for the ICC, and now speaking as the former prosecutor, asserted that in his opinion Palestine would now in view of the General Assembly action qualify as a state enjoying the option of becoming an ICC member. Normally, ICC jurisdiction is limited to crimes committed after the state becomes a member, but there is a provision that enables a declaration to be made accepting jurisdiction for crimes committed at any date in its territory so long as it is after the ICC itself was established in 2002.
Is this enough? Israel has never become a party to the Rome Statute setting up the ICC, and would certainly refuse to cooperate with a prosecutor who sought to investigate war crimes charges with the possible intention of prosecution. In this regard, recourse to ICC might appear to be futile as even if arrest warrants were to be issued by the court, as was done in relation to Qaddafi and his son in 2011, there would be no prospect that the accused Israeli political and military figures would be handed over, and without the presence of such defendants in the court at The Hague, a criminal trial cannot go forward. This illustrates a basic problem with the enforcement of international criminal law. It has been effective only against the losers in wars fought against the interests of the West and, to some extent, against those whose crimes are in countries located in sub-Saharan Africa. This biased form of international criminal law implementation has been the pattern since the first major effort was made after World War II at Nuremberg and Tokyo. Surviving German and Japanese leaders were prosecuted for their crimes while exempting the winners, despite Allied responsibility for the systematic bombing of civilian populations by way of strategic bombing and the American responsibility for dropping the atomic bombs on Hiroshima and Nagasaki.
Unfortunately, up to this time the ICC has not been able to get rid of this legacy of ‘victors’ justice,’ which has harmed its credibility and reputation. All ICC cases so far have involved accused from sub-Saharan African countries. The refusal of the ICC to investigate allegations of war crimes of the aggressors in relation the Iraq War of 2003 is a dramatic confirmation that leading states, especially the United States, possess a geopolitical veto over what the ICC can do. The ICC failure to investigate the crimes of Bush and Blair, as well as their entourage of complicit top officials, vividly shows the operations of double standards. Perhaps, the climate of opinion has evolved to the point where there would be an impulse to investigate the charges against Israel even if procedural obstacles preventing the case from being carried to completion. Any serious attempt to investigate the criminal accountability of Israeli political and military leaders would add legitimacy to the Palestinian struggle, and might have a positive spillover effect on the global solidarity movement and the intensifying BDS campaign.
Yet there are other roadblocks. First of all, the PA would definitely have to be prepared to deal with the wrath of Israel, undoubtedly supported by the United States and more blandly by several European countries. The push back could go in either of two directions: Israel formally annexing most or all of the West Bank, which it seems determined to do in any event, or more likely in the short run, withholding the transfer of funds needed by the PA to support its governmental operations. The U.S. Congress would be certain to follow the lead of Tel Aviv even if the Obama presidency might be more inclined to limit its opposition to a diplomatic slap on the PA wrist as it did recently in reacting to the June formation of the interim unity government, an important step toward reconciling Fatah and Hamas, and overcoming the fragmentation that has hampered Palestinian representation in international venues in recent years.
A second potential obstacle concerns the jurisdictional authority of the ICC, which extends to all war crimes committed on the territory of a treaty member, which means that leaders of Hamas would also likely be investigated and indicted for their reliance on indiscriminate rockets aimed in the direction of Israeli civilian targets. There is even speculation that given the politics of the ICC such that crimes alleged against Hamas might be exclusively pursued.
If we assume that these obstacles have been considered, and Palestine still wants to go ahead with efforts to activate the investigation of war crimes in Gaza, but also in the rest of occupied Palestine, what then? And assume further, that the ICC reacts responsibly, and gives the bulk of its attention to the allegations directed against Israel, the political actor that controls most aspects of the relationship. There are several major crimes against humanity enumerated in Articles 5-9 of the Rome Statute for which there exists abundant evidence as to make indictment and conviction of Israeli leaders all but inevitable if Palestine uses its privilege to activate an investigation and somehow is able to produce the defendants to face trial: reliance on excessive force, imposing an apartheid regime, collective punishment, population transfers in relations to settlements, maintenance of the separation wall in Palestine.
The underlying criminality of the recent aggression associated with Protective Edge (Israel’s name for its 2014 attack on Gaza) cannot be investigated at this point by the ICC, and this seriously limits its authority. It was only in 2010 that an amendment was adopted by the required two-thirds majority of the 122 treaty members on an agreed definition of aggression, but it will not become operative until 2017. In this respect, there is a big hole in the coverage of war crimes currently under the authority of the ICC.
Despite all these problems, recourse to the ICC remains a valuable trump card in the PA thin deck, and playing it might begin to change the balance of forces bearing on the conflict that has for decades now denied the Palestinian people their basic rights under international law. If this should happen, it would also be a great challenge to and opportunity for the ICC finally to override the geopolitical veto that has so far kept criminal accountability within the tight circle of ‘victors’ justice’ and hence only accorded the peoples of the world a very power-laden and biased experience of justice.
Interesting. The law definitely is tying the Palestinian people’s hands up, however even if the crimes are not prosecuted the mere indictment will be a huge blow to Israel’s PR such as the goldstone reports although I beleive it was prejudice to Israel by framing it as a war crime when it was a massacre. The possible ICC move can also boost (though not enough at all) to the rising global support of the Palestinian cause & the morale of the people on ground. It’s clearer to see why Israel acts with such impunity now, however the tides are turning.
So this idea of the PA taking Israel to the ICC amounts to nothing more than a PR job for Islam’s arab muslims. Anyone who supports the Islamic jihad on Israel or anywhere else, like Mr Falk, is in fact guilty of war crimes themselves. In particular in light of the fact that millions upon millions are dying and being displaced and traumatised, worldwide, due to Islamic persecution of non muslims.
I suppose the fact remains that idiots like Richard Falk, would find it more to their taste if the arab muslims of Gaza and West Bank were more successful in their perpetual jihad on the jews, and had the capability of perpetrating upon Israel the same sort of crimes against humanity that the Islamic jihadists are doing in Syria and Iraq. Unlike Israel, these governments appear to be guilty of willfully neglecting their duty to protect their citizens from Islamic terrorists who are committing the vilest of crimes upon their peoples with impunity. Nigeria is another.
As for Hamas, Falk’s total embrace of Hamas, and I assume of the other 18 Islamic jihad crime gangs in Gaza, can be indicative that he approves of such, and the evidence that Hamas is perpetrating the greatest crimes against the Palestinians should not stand in the way of the greater jihad against Israel.
Are you bought and paid for by the OIC, Mr Falk? You appear to be a liability to humanity because you are deliberately of turning a blind eye to the danger that the global jihad presents to humanity as a whole. The UN should be disbanded because it no longer serves its original purpose. Until it declares political islam and sharia the worst form of crimes against humanity and violation of human rights, the UN has no credibility at all, not that Mr Falk even works for them anymore.
Gaza could have become a showcase of Arab enlightenment and enterprise after Israel withdrew from the territory in 2005. It could have become a tourism haven and a crucible for learning and arts, science and technology.
Instead, Gaza has become a one-party Islamic dictatorship under Hamas, dedicated to the destruction of the Jewish state of Israel.
Thousands of precious lives have been lost in this macabre display of hatred disguised as piety.
Its not just Israeli Jews that have been targeted for death. Palestinians opposed to Hamas have been massacred to consolidate its power.
On Nov. 12, 2007 Hamas gunmen fired on a rally organized by Palestinian President Mahmoud Abbas’ Fatah party inside a Gaza stadium, at an event held to commemorate the late Yasser Arafat. Many were killed. To the horror of the world, Hamas gunmen butchered Fatah fighters, throwing wounded men from the roof of a 15-storey building to their deaths.
In the current clash between Israel and Hamas, another ceasefire will soon come into effect. The Americans and the United Nations will pour in millions of dollars to re-build bombed out infrastructure.
But who will tell the Palestinians to get off the path of self-destruction? Who will convince the Palestinian Islamists to stop dreaming of destroying Israel and start building the future of their own people?
Let me give it a try.
Palestinians must reflect on why, after struggling for 100 years, their dream of statehood remains unfulfilled? They need to ask themselves why tiny countries under occupation by larger foes have become independent nations, while Palestinian statehood remains out of reach.
Let us look at four examples.
East Timor: For 400 years it was colonized by Portugal and in 1975 occupied by Indonesia. The one million, mostly Catholic, Timorese fought a long, bitter guerrilla war under Fretilin (Revolutionary Front of Independent East Timor) for freedom from the huge country of Islamic Indonesia, with a 300 million population. In 2002, East Timor won independence as the last Indonesian soldier left.
Eritrea: Located in the Horn of Africa, Eritrea was annexed by its southern and larger neighbour, Ethiopia, in 1962. This triggered a 30-year guerrilla war that involved hijackings and assassinations, scarring an entire generation. However, in 1991 after a UN-supervised referendum, Eritrea gained its independence.
Then there were the independence struggles of two Islamic countries that fought for and found statehood—Bangladesh in 1971 and Kosovo in 2008.
In all four cases, these national liberation movements wanted their own freedom, not the destruction of the countries that occupied their land.
East Timor didn’t want to destroy Indonesia. Kosovo had no interest in wiping Serbia off the map.
When Palestinians stop chanting for the death of Jews and Israel, and start working to secure their own state, they will achieve it.
In fact the current Hamas collective punishment upon Israel, is the death and destruction of Palestinians, another PR job for Islam, in their jihad on the Jews.
We have all been witness to Israels intentional mass murderous warcrimes and genocidal campaigns on Palestinians and all Arabs in the Middle east. It’s time to rigorously pursue Israel for war crimes and intentional mass genocide on all the Palestinian victims both who perished in these senseless hellish attacks on helpless unarmed open aired imprisoned civilians, countless innocent children including infants/babies, pregnant women and emergency workers and staff including hospitals and reporters. The intentional heinous cruelties must be pursued and Israel must be held accountable for all their crimes and illegal acts for using heavy military weapons from air, sea and land including military on the ground. This is truly a universal holocaust. Shameful and inhuman display of endless arrogance, egoistic supremacist Zionist attitudes and the control of US military and global politics. Disgraceful intentional mass murder of a densely populated people who have endured nothing but the cruelest means of a hopeless life and existence in their own homeland. The world must see to it that Israel is thrown out of the political arena for all time and be banned for life. They lie consistently and continue their murderous campaigns on the most innocent and helpless victims.