Rights group urges ICC to investigate “top-ranking” Israeli military lawyer

The aftermath of a punitive home demolition in Shuwaika, near the West Bank city of Tulkarm, December 2018.

Ahmad Al-Bazz ActiveStills

A US-based human rights group filed a complaint on Monday calling on the International Criminal Court to investigate Eyal Toledano, a senior Israeli military leader.

Democracy for the Arab World Now (DAWN), a nonprofit group founded by murdered Washington Post columnist Jamal Khashoggi, said that Toledano should be investigated for “war crimes and crimes against humanity, including the crime of apartheid.”

The international court in The Hague has received numerous filings detailing serious violations against Palestinians, but DAWN’s intervention is unique in its focus on a specific individual.

DAWN notes that as West Bank legal advisor between 2016 and 2020, Toledano was “the top-ranking legal authority” in the territory, effectively serving as “the attorney general of Israel’s occupation.”

Toledano is currently deputy military advocate general, facilitating the Israeli army’s whitewash self-investigations of its crimes against Palestinians, including the killing of Al Jazeera correspondent Shireen Abu Akleh earlier this year.

In his previous role, according to DAWN, “Toledano oversaw and was complicit in the commission of a wide range” of violations, including home demolitions, forced displacement, mass restrictions on freedom of movement and advancing Israeli annexation of the West Bank.

During his time as West Bank legal advisor, the Israeli military “conducted 40 punitive home demolitions, which displaced 210 people,” DAWN states. Punitive home demolitions are a form of collective punishment – a war crime.

An additional 2,115 Palestinians were displaced as a result of Israel’s confiscation and demolition of hundreds of residences during Toledano’s tenure.

“Taken together, when carried out to maintain a system of oppression or domination, these and other crimes amount to the crime of apartheid,” according to DAWN.

The nonprofit adds that the ICC classifies apartheid as “a crime against humanity” and “when carried out with discriminatory intent,” these and other crimes “also constitute the crime of persecution under the Rome Statute [the founding treaty of the ICC], also a crime against humanity.”

Khan al-Ahmar

DAWN notes that Toledano oversaw “the planned displacement of the entire village of Khan al-Ahmar” – a scheme which Israel put on hold after being warned that it would constitute a war crime by Fatou Bensouda, the International Criminal Court chief prosecutor, in 2018.

The Palestine investigation at the International Criminal Court was opened by Bensouda in March 2021, shortly before her term as chief prosecutor expired.

Bensouda’s conclusion of a protracted preliminary probe recommended a formal investigation focused on Israel’s settlement colony enterprise in the West Bank and Israel’s 2014 military offensive in Gaza and use of lethal force against Great March of Return protesters.

The ICC prosecutes individuals rather than states and prioritizes top brass and government leaders who author and execute policy, rather than rank-and-file soldiers.

DAWN states that “under the doctrine of command or superior responsibility,” Toledano is “responsible for the conduct of his subordinates, and criminally responsible for their crimes.”

Media have reported that the Israeli government has a list of hundreds of officials who might be investigated and prosecuted by the court.

Given that colonization of Palestinian land is Israel’s raison d’être, just about every facet of the government – and therefore its personnel – is implicated in Israel’s colonization of the occupied West Bank.

David Mintz, a judge at Israel’s high court, might find himself in Toledano’s company after authoring a ruling permitting the mass expulsion of Palestinians from the Masafer Yatta area of the southern West Bank earlier this year.

Despite the acceleration of Israeli colonization and all the violence it entails, seemingly no progress has been made in the investigation since Karim Khan was sworn in as chief prosecutor in June last year.

Double standards

Khan has been tight-lipped on the Palestine investigation while making numerous media appearances championing the investigation in Ukraine, launched earlier this year following Russia’s invasion.

International justice, it would seem, is only to be enjoyed when it aligns with the geopolitical interests of certain powerful states.

Navi Pillay, the chair of a UN commission of inquiry into Israel’s oppression against Palestinians as a whole, pointed to the hypocrisy of states that condemn Russia for unilaterally annexing areas of Ukraine but not Israel’s annexation of Palestinian territory.

“Recent statements by the secretary-general and numerous member states have clearly indicated that any attempt at unilateral annexation of a state’s territory by another state is a violation of international law and is null and void,” Pillay said.

“Unless universally applied, including to the situation in the occupied Palestinian territory, this core principle of the United Nations Charter will become meaningless.”

The double-standard was also noted by Balakrishnan Rajagopal, the UN special rapporteur on housing, in his report delivered to the General Assembly last week.

“Indeed, the aggression of the Russian Federation against Ukraine has been met by an unprecedented international condemnation and investigative and prosecutorial efforts, including by the International Criminal Court,” Rajagopal stated.

“As admirable and necessary as they are, there is no denying that such actions are blatantly missing in other humanitarian crises, such as in Afghanistan or Palestine – both of which have had cases pending before the International Criminal Court for years without any tangible outcome.”

In the same report, Rajagopal stated that “the institutionalized regime of systematic racial oppression and discrimination that has led to the destruction of Palestinian homes is nothing short of apartheid” as defined under the Rome Statute, the founding treaty of the ICC.

Rajagopal added that “the intentional and severe deprivation of the fundamental right to housing, contrary to international law, owing to forcible transfer of population, would likewise satisfy the definition of persecution.”

Rajagopal wasn’t the only UN special rapporteur to highlight Israel’s apartheid practices imposed on Palestinians during the general assembly.

Francesca Albanese, the special rapporteur on the human rights situation in the West Bank and Gaza Strip, stated that Israel’s apartheid system is a means by which it denies Palestinians their right to self-determination and facilitates its settler-colony enterprise – the root cause of the conflict.

E. Tendayi Achiume, the special rapporteur on racism, highlighted the “ecological devastation and transformation” of the occupied West Bank and Gaza Strip.

“Israeli settler expansion into Palestinian territories has led to the destruction of hundreds of Palestinian villages,” Achiume noted. Meanwhile, Israel offers tax incentives for high-polluting industry to relocate to the West Bank “with immense, documented genotoxic effects for Palestinian residents.”

Israel confiscates Palestinian land to build settlements on the pretext of protecting natural areas, “a practice which has been described as ‘greenwashing,’” Achiume said, while the vast majority of water in the West Bank is expropriated for the exclusive use by Jewish settlers.

“Indeed, Israel’s practices and policies in the [occupied West Bank and Gaza Strip] amount to apartheid, with extreme environmental and human rights consequences for Palestinians,” she added.




Navi Pillay writes "Recent statements by the secretary-general and numerous member states have clearly indicated that any attempt at unilateral annexation of a state’s territory by another state is a violation of international law and is null and void". Well, for a lawyer to make this statement indicates she missed Law the day they taught it at her Law School. The Occupied Territories , as you describe them, are NOT a state despite the UNGA wishing it so. Only the UNSC can declare a state into existence. Therefore, to call the West Bank the "territory" of a non-existent state is null and void.

Maureen Clare Murphy

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Maureen Clare Murphy is senior editor of The Electronic Intifada.