The International Criminal Court has issued an unprecedented warning that Israeli leaders may face trial for the killings of unarmed Palestinian protesters in the Gaza Strip.
“Since 30 March 2018, at least 27 Palestinians have been reportedly killed by the Israeli Defence Forces, with over a thousand more injured, many, as a result of shootings using live ammunition and rubber bullets,” Fatou Bensouda, the ICC’s chief prosecutor, stated on Sunday.
“Violence against civilians – in a situation such as the one prevailing in Gaza – could constitute crimes under the Rome Statute of the International Criminal Court, as could the use of civilian presence for the purpose of shielding military activities,” Bensouda said.
“Any person who incites or engages in acts of violence including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC’s jurisdiction is liable to prosecution before the court,” Bensouda added.
Bensouda’s reference to using civilians for “shielding military activities” appears to be a nod to Israel’s claims that the Great March of Return mass rallies organized by Palestinians over the last two Fridays along Gaza’s boundary with Israel are a Hamas ploy to shield “terrorist” activities.
However, as an investigation by Human Rights Watch determined, and observations by journalists have confirmed, there have been no such “military activities” by Palestinians taking part in the demonstrations.
No Israelis have been reported injured as a result of the Palestinian protests in Gaza.
But what is not in doubt is that Israeli leaders have ordered the targeting of unarmed civilian protesters in what Human Rights Watch termed “calculated” killings of people who posed no threat whatsoever.
Three of those slain have been children.
In advance of this Friday’s demonstrations, the Israeli human rights group B’Tselem had warned soldiers that they would be committing crimes if they obeyed “patently illegal” orders to shoot unarmed civilians.
Israeli snipers stationed along the boundary with Gaza killed nine Palestinians on Friday.
But despite such warnings, Israeli leaders have refused to change their live-fire orders, and have repeatedly commended their soldiers for the bloodshed.
On Sunday, defense minister Avigdor Lieberman declared in effect that all two million of Gaza’s residents are legitimate targets, telling Israeli media that “in the march of terror there were no innocent civilians, they were all Hamas members.”
According to The Times of Israel, Lieberman “later clarified that his use of the Hebrew word tamim was intended to mean not ‘innocent,’ but ‘naive.’”
His walking back the comment is not surprising since such statements can be used as evidence of intent in any international criminal trial.
Lieberman had been slamming calls to investigate the killing of journalist Yaser Murtaja who was fatally shot while wearning a vest clearly marked with the word “Press” on Friday.
“We have seen dozens of cases of Hamas activists [who] were disguised as medics and journalists,” Lieberman claimed.
“We also saw a journalist approach the border and operate a drone, we do not take chances in those cases,” he added, an assertion which the Israel military has found no evidence to support.
At the rallies the week before Murtaja’s slaying, Israeli forces injured 10 journalists, including several with live ammunition, according to the Committee to Protect Journalists.
Despite Lieberman’s objections, the Israeli army on Sunday named one of its own generals to investigate its actions that have led to the killings of Palestinians in Gaza, including of Murtaja.
This is why the ICC prosecutor’s statement carries particular significance, since the international court is only mandated to step in when national judicial authorities are unwilling or unable to carry out genuine proceedings.
In her statement Sunday, Bensouda noted “the situation in Palestine is under preliminary examination by my office.” That is the procedure by which the prosecutor decides whether to open a formal investigation that could lead to indictments.
But the open-ended preliminary examination has been going on for years with Bensouda appearing to drag her feet.
In a case related to Israel’s 2010 attack on a flotilla to Gaza, Bensouda has acknowledged that Israeli forces likely committed war crimes in international waters, but she has nonetheless declined to open a formal investigation.
The lawyers for the families of those killed when Israeli commandos stormed the Mavi Marmara have accused Bensouda’s office of going “out of its way to sidestep having to launch any real investigation at the international level, knowing full well that the national [Israeli] authorities are not investigating these crimes.”
Since its founding, the ICC has lost much credibility because of its exclusive focus on prosecuting Africans, despite the fact that the 1998 Rome Statute mandates the court to “put an end to impunity” for the gravest crimes no matter where they are committed.
Palestinians are planning more mass rallies in Gaza in the weeks leading up to Nakba Day – the 15 May annual commemoration of the 1948 ethnic cleansing of Palestine.
It remains to be seen if Bensouda’s warning will deter Israeli leaders from further slaughter and if the court will finally move to end the impunity Israel has enjoyed for decades.