Israel lashes out as ICC okays war crimes probe

Palestinian human rights groups welcomed the ICC’s determination of territorial jurisdiction as a “critically important step” towards ending Israeli impunity. 

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The International Criminal Court has territorial jurisdiction to investigate suspected war crimes in the West Bank and Gaza Strip, a panel of judges affirmed last week.

The ruling, which took months to hand down after being requested by the court’s chief prosecutor, was welcomed by human rights groups who called for expeditious proceedings.

Israeli government figures condemned the ICC judges’ decision, with Prime Minister Benjamin Netanyahu calling it “pure anti-Semitism.”

Fatou Bensouda, the ICC chief prosecutor, concluded a five-year preliminary examination of the situation in Palestine at the end of 2019, stating that criteria for war crimes investigations in the occupied West Bank and Gaza Strip had been met.

Bensouda gave three examples of crimes meeting the threshold requirement of court jurisdiction in relation to the situation in Palestine.

She stated that there is a basis to believe that both the Israeli military and members of Hamas and other Palestinian armed groups committed war crimes during hostilities in Gaza during 2014.

The second example given by Bensouda is the transfer of Israel’s civilian population into West Bank settlements.

The chief prosecutor also pointed to the Israeli military’s use of force against Palestinians during Great March of Return protests in Gaza beginning in March 2018.

Bensouda, who will be retiring in June, had asked a pre-trial chamber – a panel of judges – for guidance on whether the court has jurisdiction in those territories.

Her office stated on Friday that it “welcomes this judicial clarity,” adding that it is “carefully analyzing the decision.”

“Immediate action”

A coalition of Palestinian human rights groups praised the “landmark” ruling as “a critically important step towards ensuring the rule of law” and “towards ending impunity.”

The groups called for “immediate action” by the prosecutor “to ensure justice and accountability for Palestinian victims.”

Those four organizations – Al-Haq, Al Mezan, Al Dameer and the Palestinian Center for Human Rights – have submitted “six substantial communications and thousands of eyewitness files” to the prosecutor’s office.

The rights groups are “routinely faced with hostile measures of collective punishment from Israel,” including “a protracted campaign of smears and death threats.”

Israeli officials lashed out after the ruling on territorial jurisdiction was announced, relying on well-worn and baseless accusations of anti-Semitism while ignoring the substance of the court decision.

In a video address on Friday, Netanyahu stated that “we will fight this perversion of justice with all our might.”

Naftali Bennett, an Israeli lawmaker and head of Yamina, a right-wing party, said on Sunday: “If the International Criminal Court is making a list of so-called Israeli [war crimes] suspects, I ask that my name be put at the top of that list.”

Bennett has previously bragged that he has “killed lots of Arabs.”

Bezalel Smotrich, a lawmaker in Israel’s parliament, called on Netanyahu to forcibly depopulate Khan al-Ahmar, a Palestinian village in the West Bank, in response to the ICC.

“What matters is not what the Gentiles will say but what the Jews will do,” he stated – echoing a notorious phrase attributed to Israel’s founding prime minister David Ben-Gurion.

ICC scrutiny has likely prevented Israel from destroying Khan al-Ahmar previously.

In 2018, Bensouda expressed concern over the “planned eviction” of Khan al-Ahmar, adding that extensive destruction of property and population transfers in occupied territory are crimes.

Israeli leaders have attacked Bensouda, who was subjected to economic sanctions last year under an executive order made by then US President Donald Trump that is currently under review by the Biden administration.

Danny Danon, Israel’s former UN envoy, said on Friday that “if anyone should be on the stand,” it should be Bensouda.

Israel rallies its allies

Meanwhile, Israel is again seeking to enlist its allies in its fight against international justice.

On Sunday, the Israeli foreign ministry instructed its ambassadors to lobby the governments in which they are posted to issue statements opposing the judges’ ruling.

So far, only the US, Canada and Australia – all settler-colonial states like Israel – have protested the decision.

As of Monday evening, the European Union had issued no statement about the ICC decision via its social media channels.

But in response to a query from The Electronic Intifada, an EU foreign affairs spokesperson wrote that the bloc “has taken careful note” of the ruling and that it is “a strong supporter of the ICC and of its independence.”

“Both the ICC and its prosecutor are independent and impartial judicial institutions with no political objectives to pursue,” the statement added, contradicting claims of bias made by Netanyahu and other Israeli leaders.

The lack of criticism of the decision by the reliably pro-Israel EU will likely set off alarm bells among Israeli leaders.

Notably, however, some EU member states – including Hungary, Austria, Germany and the Czech Republic – had intervened at the court on Israel’s behalf, urging the judges to rule against territorial jurisdiction.

Israeli officials claim that some ICC member states “have agreed to give advance warning to Israel of any intent to arrest” its citizens upon arrival to their countries, the Tel Aviv daily Haaretz reported on Sunday.

Providing tip-offs that could allow suspects to escape investigation or arrest would likely violate the obligations that member states have under the ICC’s founding Rome Statute to cooperate with the court’s work.

Haaretz added that Israel has a list of hundreds of officials who might be investigated and prosecuted by the court, which tries individuals, not states.

Any war crimes trials, however, are likely a long way off, but an investigation may begin imminently.

The ICC moved into an investigation phase as soon as the chief prosecutor closed the preliminary examination in 2019, Susan Power, a legal researcher at Al-Haq, told Al Jazeera English on Friday.

But in their ruling on territorial jurisdiction, the ICC judges warned that there might be “a protracted process,” suggesting that there could be further delays, as Power explained.

“We would say we can no longer wait any further,” Power said. “We must see an immediate investigation,” noting that the “files are already there.”

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It is a great start to a story that has gone unpunished for far too long. The criminal archaeology will unearth some gruesome facts at which the perpetrators must be already shaking with fear about.

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Israel is not a democracy but a theocracy. It can't be both a Jewish State and a democratic State. It denies the right to full citizenship to all but Jews. In a democracy all citizens are equal before the law. Smotrich expresses in all its vile prejudice the Ben-Gurionism of facts on the ground. His comment echoes not only the erstwhile leader but also Flapan's famous comment that Judaism has always contained a current of racism towards non-Jews and Arabs in particular. The ICC grew out of the post-war determination to bring the perpetrators of the Nazi genocide to justice. Two of the people who worked hardest for its establishment were Jews: Ben Fernencz and Robert Kurt Woetzel. If the ICC is anti-Semitic, were the Nuremberg trails anti-German? Two of the major precursors of the ICC were the International Criminal Court for the former Yugoslavia and the ICC for Rwanda. It's remit has always been closely associated with the prosecution of genocide. 7 countries voted against the Rome Statute in 1998: China, Iraq, Israel, Libya, Qatar, the US and Yemen. Fine company the US and Israel keep. The response of the EU is encouraging. If its customary lining up behind Israel whatever it does is resisted this time, if it sides with international justice, that would be a good marker. US, Canada and Australia: how their histories bind them and drag them down. It will interesting to see how Starmer responds. The Zionists in UK Labour will be in a flurry. What is astonishing is that such a small step in the direction of international justice based on common standards and impersonal values should be seen as outlandish by people who claim to uphold justice and democracy. One day, war will be outlawed and those who prosecute it brought to justice under international law. Peace is the greatest gift leaders can bring to the common folk, especially the common folk of oppressed populations like the Palestinians.

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Maureen Clare Murphy

Maureen Clare Murphy's picture

Maureen Clare Murphy is an associate editor of The Electronic Intifada and lives in Chicago.