Could ICC try Palestinians while Israel gets away with murder?

Young man with scarf wrapped around his face holds a rifle while leaning on vehicle

Palestinian fighters from the Quds Brigades, the armed wing of Islamic Jihad, take part in a military parade in Gaza City, June 2020.

Mahmoud Alhende APA images

A recent report by Human Rights Watch concludes that Gaza-based Palestinian armed resistance groups committed war crimes by firing unguided projectiles towards Israeli population centers in May.

The New York-based group does not hedge its language when it comes to Palestinian rocket fire as it does in its two reports on far more lethal and destructive Israeli airstrikes in Gaza.

The group’s unequivocal determination that Palestinian resistance fighters committed war crimes, on the one hand, while Israeli airstrikes are “apparent” war crimes, on the other, is a troubling barometer of how the case of Palestine might go at the International Criminal Court – should it move forward at all.

Human Rights Watch urges the ICC to investigate “Israeli attacks in Gaza that resulted in apparently unlawful civilian casualties, as well as Palestinian rocket attacks that struck population centers in Israel.”

During the 11-day escalation in May, at least 260 Palestinians in Gaza were killed in Israeli strikes, including 66 children.

According to the UN’s human rights office, “129 of the fatalities were civilians and 64 were members of armed groups, while the status of the remaining 67 has not been determined.”

Twelve civilians and a soldier in Israel were killed as a result of fire from Gaza during the same period. Three of those civilians died from accidents or cardiac arrest while running to bomb shelters.

Two of the civilians killed directly by rocket fire lacked access to bomb shelters because they live in Dahmash, a village not recognized by the government due to Israel’s system of apartheid imposed on Palestinians throughout their homeland.

Though the Palestinian residents of unrecognized villages hold Israeli citizenship, Israel deprives them of basic services and infrastructure in an effort to forcibly transfer them from their land.

Palestinians in Gaza were also killed by rockets fired by resistance groups in the territory during May.

“Munitions apparently directed toward Israel that misfired and fell short killed and injured an undetermined number of Palestinians in Gaza,” according to Human Rights Watch.

The rights group’s report, published as a web page, links to an Israeli foreign affairs ministry web page on rockets “launched by the Iranian-backed Hamas terror organization.”

Double standards

Human Rights Watch probed several deadly attacks on Israeli civilians and a Palestinian rocket strike that misfired above Jabaliya, northern Gaza, killing seven Palestinian civilians.

“Palestinian armed groups during the May fighting flagrantly violated the laws-of-war prohibition on indiscriminate attacks by launching thousands of unguided rockets towards Israeli cities,” Eric Goldstein, a project director at Human Rights Watch, is quoted as saying in the report.

In an earlier report examining Israel’s targeting of residential towers in May, which massacred families in their homes, Human Rights Watch employed qualifying language. It said these attacks, as well as those waged by armed groups, “violated the laws of war and amount to apparent war crimes” (emphasis added).

By contrast, in its follow-up investigation of Palestinian rocket and mortar attacks from Gaza, Human Rights Watch unequivocally states that such activities “violated the laws of war and amount to war crimes.”

According to the group, claims made by Palestinian resistance organizations that they launched rockets towards Tel Aviv and other population centers in response to Israeli attacks “suggest that they were deliberate attacks on civilians” – even though Israel’s main military headquarters, the so-called HaKirya – is in the heart of Tel Aviv.

It is not clear why Human Rights Watch does not factor into its legal analysis of Israeli military conduct statements by that country’s leaders that could constitute an intent to commit war crimes as well as psychological torture of civilians.

For example, Benny Gantz, Israel’s defense minister at the time and current deputy prime minister, stated during the May escalation that “no person, area or neighborhood in Gaza is immune.”

That threat could reasonably be interpreted to mean that Israel would once again use overwhelming and disproportionate force and widely target civilian infrastructure, as it has during the previous three major attacks on Gaza and its war on Lebanon during 2006.

That Israeli policy is known as the Dahiya Doctrine, and is one long acknowledged by the country’s political and military leaders – as Human Rights Watch documented in its report on Israel’s 2008 assault on Gaza codenamed Operation Cast Lead but not in its reports on the May escalation.

The rights group does state that indiscriminate attacks not targeting a “specific military objective, or that use a means or method of attack that cannot be directed at a specific military target” are prohibited by the laws of war.

The rockets and mortars fired by Palestinian groups in Gaza “lack guidance systems and are prone to misfire, making them extremely inaccurate and thus inherently indiscriminate when directed toward areas with civilians,” Human Rights Watch adds. Thus, launching them towards civilian areas “is a war crime.”

As The Electronic Intifada published previously, the same analysis would apply to 155mm artillery shells which Israel lobbed into Gaza during May.

Such artillery systems can only be aimed to fall within a circle whose radius may extend hundreds of meters from the intended target.

Human Rights Watch even acknowledged this inherent inaccuracy in its 2007 report on Israeli attacks on Gaza titled “Indiscriminate Fire.”

The aftermath of Israeli bombardment in Gaza City, 22 May 2021.

Mohammed Zaanoun ActiveStills

But in its recent reports, Human Rights Watch fails to acknowledge the inherently indiscriminate nature of weapons used by Israel – a glaring double standard.

In its three recent reports examining the legality of Israeli and Palestinian conduct during May, Human Rights Watch avoids explicitly describing Israeli weapons as indiscriminate.

Yet an investigation published by Middle East Eye demonstrates that Israel extensively used another indiscriminate weapon during the Gaza offensive.

Bomb disposal experts in Gaza told the publication that of the 2,750 airstrikes carried out by Israel in May, the one-ton Mark-84 “bunker-buster” bomb “designed to penetrate layers of steel or concrete” was used by Israel the most frequently.

First used by the US in the Vietnam War, the 14-foot long bombs contain some 880 pounds or 400 kilograms of explosives. The MK-84s “have a ‘kill radius’ of more than 30 meters and create a supersonic pressure wave when they explode,” according to Middle East Eye.

But the bomb can actually kill people up to 360 meters away – an enormous distance within the confines of a densely packed urban area like Gaza City.

Pressure from the bomb’s explosive shock wave “can rupture lungs, burst sinus cavities, and tear off limbs hundreds of meters from the blast site,” according to the UN.

It is not clear why Human Rights Watch would find that Palestinian fire of unguided munitions towards civilian population centers inherently constitutes a war crime but not Israel’s use of highly inaccurate heavy artillery or even far more destructive bunker-buster bombs dropped on residential buildings in city centers.

After all, the determination of a party’s adherence to the laws of war should not depend on whether it can access state-of-the-art weapons manufactured in the US by companies that profit from war.

Such a legal doctrine would be overwhelmingly and irredeemably biased in the favor of states with powerful militaries, and against stateless or colonized populations seeking liberation from an oppressive and illegitimate authority, as is the case of Palestinians resisting in Gaza.

Protecting civilians

Human Rights Watch also takes Palestinian armed groups to task for firing weapons within proximity to civilian population centers.

“Warring parties to the extent feasible must also avoid firing weapons from within or near densely populated areas and otherwise take necessary precautions to protect civilians under their control from attack,” the group states.

It is an assertion that echoes accusations by Israel and its war crime apologists that Palestinian armed groups use civilians as human shields.

Human Rights Watch privileges these accusations in its report on Israel’s targeting of high-rise buildings in Gaza that Israel says were being used by armed groups.

“The deployment of Palestinian armed groups in the towers, if true, would go against requirements to take all feasible precautions to minimize harm to civilians,” the rights group states.

Yet Human Rights Watch offers no evidence of its own to back these assertions and concedes that Israel has never provided evidence to support its frequent accusations that Palestinian armed groups use civilians as “human shields.” So why does Human Rights Watch give weight to claims for which neither it nor Israel has any evidence?

Curiously, the rights group does not take the Israeli government to task for failing to provide its citizens in the unrecognized village of Dahmash, where 16-year-old Nadine Awad was killed along with her father Khalil, with bomb shelters.

Israel, as the occupying power of the Gaza Strip, also has a special obligation to protect civilians there.

More than two million Palestinians – two-thirds of them refugees, all of them stateless – live in 140 square miles in Gaza, making it one of the most densely populated areas in the world.

Landscape view of rocket fired into air with smoke streaking behind it

Rockets are launched from Gaza City towards Israel, 10 May 2021.

Mohammed Zaanoun ActiveStills

Palestinians do not have a conventional military, let alone one of the most advanced like that possessed by Israel. The disparity in military power between Palestinian armed groups in Gaza and Israel is evident in the fatality ratio of 20:1 and the scope of destruction of their respective attacks.

Most of the 4,340 rockets that Israel says were fired from Gaza were thwarted by Israel’s Iron Dome missile interception system or landed in open areas. These rockets also carry explosive charges far smaller than many types of Israeli munitions and bombs.

With its supposedly precision-guided missiles, Israel destroyed more residential units in high-rise buildings in Gaza during the 11-day escalation in May than it did during the entire 51-day war in 2014.

UN independent human rights experts stated that “owing to the vast asymmetry of power, the victims of this conflict are disproportionately Palestinians in Gaza.”

That gaping asymmetry is not reflected in the “both sides” approach adopted by Human Rights Watch, which seems to treat the Palestinian resistance and Israel as equal players – albeit with Israel given the benefit of the doubt over whether its actions constitute war crimes.

Human Rights Watch fails to take into account the fundamental relationship between the colonizing power and the stateless refugees against whom Israel wages war.

As a result, its analysis ignores the broader context of Israel’s incremental genocide against Palestinians in Gaza and its overall goal to obliterate the Palestinian national liberation project in service of its colonial ambitions.

Imperialist bias

Self-proclaimed champions of Palestinian human rights like Human Rights Watch must also acknowledge the imperialist and pro-state bias inherent in international law.

Those rules and principles were first developed as a tool of the “civilizing mission” of colonialism to bring the “uncivilized” into the “universal order” as determined by Europe for its material aims.

Writing in Third World Quarterly, University of Utah law professor Antony Anghie describes the ways “imperialism shaped the discipline” of international law. He lays out how colonialism was “central to the formation of international law and, in particular, its founding concept, sovereignty.”

According to Anghie, international law “has always been animated by the civilizing mission, the project of governing and transforming non-European peoples.”

European law, including doctrines used to deal with relations between European states over claims to non-European lands, became universal via colonization and expansion.

The “imperial character” of international law was raised in the wake of World War I. The territories of defeated powers came under the authority of the League of Nations Mandate System rather than being directly acquired as colonies, though they were still fully subordinate to Western imperial power and interests.

Palestine, formerly under Ottoman authority, became one such Mandate territory – in the hands of the British Empire – before the state of Israel was declared in 1948.

Eventually, “sustained protest by Third World peoples” ensured that decolonization became “a central preoccupation of the international system,” with the UN creating “a number of institutional mechanisms for the furtherance of decolonization,” Anghie recounts.

During the “war on terror” era of the past 20 years, international law has once again been used for the “civilizing mission,” which this time around “asserts itself in the name of ‘national security,’ as self-defense,” according to Anghie.

Imperialism is embedded in the DNA of international law and its application, including at the International Criminal Court.

So far, only nationals of African states have been indicted or tried at the tribunal.

Meanwhile, no US official has ever been held accountable by an international court for the illegal wars and occupations of Afghanistan, Iraq and Libya, and extrajudicial executions via airstrike far beyond, despite the enormous cost in human lives from those imperialist interventions.

And as noted by Susan Power, an international law expert, there have already been 10 commissions of inquiry and fact-finding investigations into the situation in Palestine and an 11th was established by the UN Human Rights Council after the May escalation.

A 2019 commission of inquiry report “even recommends the transfer of dossiers on alleged perpetrators of crimes committed during the Great Return March to the ICC,” Power observes.

And yet there has been no meaningful accountability that effectively restrains Israel from committing additional war crimes against Palestinians.

Thus the International Criminal Court “constitutes the last hope for accountability for Palestinian victims,” according to the Palestinian Center for Human Rights.

And as “the longest unresolved question to fall under the responsibility of the UN,” the question of Palestine has “become a litmus test for the efficacy of the international system as a whole,” an assembly of Palestinian, regional and international human rights groups has stated.

Stasis at ICC

Earlier this year, the International Criminal Court announced that it had opened a formal investigation into war crimes in the West Bank and Gaza Strip.

It remains unclear, however, whether the investigation will move forward.

Fatou Bensouda, who oversaw the preliminary investigation into the situation in Palestine, reached the end of her nine-year term as chief prosecutor in June and was replaced by Karim Khan.

The British barrister, the court’s third chief prosecutor, has pledged to improve his office’s record by pursuing only the strongest cases.

Khan is under heavy pressure to drop both the Palestine and Afghanistan cases, which could see the indictment of Israeli and US officials, though neither state is a member of the court and both reject its jurisdiction over their nationals.

Territorial jurisdiction has been a primary sticking point in the case of Palestine, so much so that Bensouda requested that a panel of ICC judges rule on the matter before she opened a formal investigation.

Bensouda posited that though they are not able to exercise their right to self-determination, Palestinians are the rightful sovereigns of the West Bank and Gaza, which is under Israeli occupation.

The judges agreed with the prosecutor that Palestine is a state for the purposes of the ICC’s founding Rome Statute. Although the judges have ruled, Israel and its allies will continue to challenge the ICC’s territorial jurisdiction.

Without territorial jurisdiction, the only way for a case to be referred to the ICC is through the UN Security Council, where the US and European states have long served as Israel’s lawyers.

The fact that territorial jurisdiction is even a requirement for Palestinians pursuing justice at the world’s court of last resort demonstrates international law’s bias in favor of states.

As argued by law professor Aeyal Gross, the Rome Statute “perpetuates a colonial premise under which only those accorded the status of statehood can be actors who count in the international legal arena.”

Gross adds: “This requirement, as a built-in feature of the Rome Statute, denies protection to those who may need it most, including those living under foreign rule or occupation.”

Moreover, the principle of complementarity – whereby the court defers to a state’s own investigations, where they exist – may also weaken Palestine’s case in the eyes of the new chief prosecutor.

Israel has a self-investigation system. But as Human Rights Watch states, both “Israeli and Palestinian authorities have a long track record of failing to credibly investigate alleged war crimes by their forces in Gaza.” The Israeli human rights group B’Tselem no longer refers cases to Israel’s self-investigation system, calling it a “fig leaf for the occupation.”

And then there’s last year’s recommendation from an Independent Expert Review, commissioned by ICC member states, that the resource-strapped office of the prosecutor should “hibernate” deprioritized investigations.

The review’s recommendation that the court “tailor its activities to match the resources available” may mean it will prioritize cases that are easiest to pursue, considering “the amount and quality of evidence available, international cooperation, security situation and ability to protect witnesses.”

Such an approach would be a far cry from the purported purpose of the court, which “was created specifically to step in to deliver justice in situations where impunity is entrenched,” as Amnesty International states.

Entrenched impunity is clearly the case in Palestine, where a defenseless population is up against one of the world’s strongest military powers that seeks their removal and replacement with colonial settlers.

The overburdened ICC could foreseeably pursue only aspects of the Palestine case that are open-and-shut, such as Israel’s settlement enterprise in the West Bank.

But according to international law expert Victor Kattan, Hamas and Islamic Jihad leaders are “the lowest hanging fruit for the new prosecutor” at The Hague.

Man stands underneath hole in kitchen ceiling

An Ashkelon home damaged by a rocket fired from Gaza, May 2021.

Amir Cohen Reuters

“Not only is Hamas headquartered in the territory of a state party — namely Palestine, but its diasporic leadership is scattered throughout the world, with many of its leaders living in the territories of state parties,” Kattan states.

“To put it bluntly, they are sitting ducks. It is difficult to imagine that any state party would be willing to breach its international obligations to proactively shield Hamas leaders from an arrest warrant issued by the prosecutor,” he adds.

Unlike Israel, Hamas has welcomed the ICC investigation. Hamas published Human Rights Watch’s initial report on the May escalation on its website, even though it states that both Israeli forces and Palestinian armed groups violated the laws of war.

Hamas responded to the rights group’s report on rocket fire by stating that “the resistance is keen on developing its capabilities so that it can accurately target Israeli military headquarters and activities only.”

“Based on our belief that our cause is just, and that our people are victims of racist aggression that has been ongoing for decades, we renew our respect for international law and international humanitarian law,” Hamas added.

Despite the justness of the Palestinian cause and an occupied population’s right to armed resistance, it is an entirely plausible scenario that resistance leaders might be indicted by the ICC but not the Israeli authors and executors of a military doctrine that has resulted in the deaths of thousands of civilians in Gaza since late 2008.

With everything stacked against them, and in a situation of total Israeli impunity, it should be no surprise that Palestinians would take matters into their own hands and use any means necessary to live a life with dignity on their own land.

Even if they are condemned as war criminals by Human Rights Watch, a watchdog for a system designed to serve imperial aims.

Maureen Clare Murphy is senior editor of The Electronic Intifada.