Will ICC help Israel get away with Shireen Abu Akleh's murder?

A makeshift memorial at the site in Jenin refugee camp where Al Jazeera correspondent Shireen Abu Akleh was killed while covering an Israeli military raid, 19 May.
Ahmed Ibrahim APA images

If Israel thought that the international heat over the apparent targeted killing of iconic Palestinian journalist Shireen Abu Akleh would blow over in a couple of weeks, it was very wrong.

One can understand, however, why Israel would make such a calculation.

It has gotten away with intentionally killing Palestinian journalists, paramedics and persons with disabilities with little consequence other than demands for accountability from human rights investigators that have gone ignored by Israel’s international accomplices.

It has repeatedly attacked Palestinians inside Gaza, where there is no safety from Israel’s bombs in the territory, under economic blockade and comprehensive closure since 2007.

All this is on top of Israel’s blatantly illegal settlement enterprise in the West Bank and Golan Heights and its brutal pacification of any and all forms of resistance against it. On top of that is Israel’s frequent lethal violations of Lebanese and Syrian sovereignty as well as its international assassinations and global export of weapons and repression technologies.

Abu Akleh worked for Al Jazeera, funded by Qatar, and held US citizenship, making her murder an international issue that won’t be quickly swept under the rug.

Indeed, her shocking death is proving a turning point in multiple ways.

She exposed Israel’s lies even after her death and, in the words of Mohammed El-Kurd, she “liberated Jerusalem,” however briefly, as the Palestinian people united in outrage and poured into its streets to pay their respects – a mass gathering not seen in years as Israel violently represses Palestinian public life in the city.

And Abu Akleh may yet expose the complicity of the US government in shoring up Israeli impunity, even as Biden administration officials, some of whom knew her personally, claim to seek accountability for her killing.

Deliberately shot

The Palestinian Authority announced the results of its investigation into Abu Akleh’s death on Thursday, saying that Israeli forces deliberately shot and killed her while she was fleeing their fire.

The PA’s investigation was “based on interviews with witnesses, an inspection of the scene and a forensic medical report,” Akram al-Khatib, the PA attorney general, told media.

The investigation determined that Abu Akleh was hit by a high-velocity armor-piercing 5.56 mm bullet fired from a Ruger Mini-14 semi automatic rifle – a US-manufactured weapon.

The reporter was wearing a helmet and protective vest marked as “press” when she was shot in the back of the head.

The Israel military has stonewalled its investigation into Abu Akleh’s death by claiming that it needs the bullet that killed her for ballistics testing and blaming the PA for refusing to hand it over.

Israel has however failed to disclose the GPS coordinates of all of its soldiers who were present in Jenin refugee camp when Abu Akleh was killed. Nor has it published in full the footage from soldiers’ body cameras that were apparently in operation at the time of her death.

An Israeli military spokesperson has declined to say when it would release the additional footage from the morning of Abu Akleh’s death or describe what it shows, the AP news agency reported on Thursday.

AP’s reconstruction of events, published this week, suggests that Israeli fire killed the journalist.

Witnesses interviewed by the news agency “insisted there were no militants in the area between the reporters and the army,” contradicting Israel’s claim that there was an exchange of fire at the time.

Benny Gantz, Israel’s defense minister, rejected the Palestinian Authority’s findings on Thursday, stating that any claim that the Israeli military “intentionally targets journalists or those uninvolved [in terror] is a crude and blatant lie.”

Aviv Kochavi, Israel’s military chief, repeated similar claims on Friday, saying that “no IDF soldier deliberately fired at a journalist. We investigated this. That is the conclusion, and there is no other.”

Kochavi emphatically did not deny that an Israeli soldier killed her. But he implied that Abu Akleh’s death was an operational error in a combat zone, even though there was no exchange of fire between Israeli soldiers and Palestinian fighters at the time, as witnesses and survivors have testified and is shown in video footage of the journalist’s final moments.

Israeli president Isaac Herzog dismissed another investigation by CNN as “fake facts” while the Israeli military stated that “the claim that the shooting was deliberate lacks any foundation.”

The conclusion of CNN’s forensic investigation was more forceful than that of AP, suggesting that the reporter was deliberately targeted.

Targeting journalists

Despite the claims by Israel’s top military and political figures that its army doesn’t target journalists, an independent UN commission of inquiry found that soldiers did just that during Gaza’s Great March of Return protests.

“[Israeli forces] have intentionally shot children, they’ve intentionally shot people with disabilities, they’ve intentionally shot journalists, knowing them to be children, people with disabilities and journalists,” Sara Hossain, one of the three investigators appointed by the UN Human Rights Council, said in 2019.

More than 215 Palestinians were killed during those protests, which began in late March 2018 and were suspended in December 2019.

Only one Israeli soldier had been indicted over the use of live fire against unarmed protesters during the Great March of Return as of late 2020.

Israel’s killing and maiming of Gaza protesters is a main focus of the International Criminal Court’s investigation in Palestine that was launched in March last year.

The Palestinian Authority has requested that the tribunal in The Hague also investigate Shireen Abu Akleh’s killing.

On Thursday, a coalition of 34 press freedom and human rights groups called for an immediate and independent investigation into Abu Akleh’s killing.

Failing “an independent and impartial investigation by the government of Israel,” the groups call on the ICC to determine “if this incident amounts to a war crime.”

Shortly before Abu Akeh’s killing, the International Criminal Court received a separate complaint alleging war crimes against journalists by Israeli occupation forces.

The complaint concerns the “systematic targeting” of four Palestinian media workers who were “killed or maimed by Israeli snipers while covering demonstrations in Gaza,” according to the International Federation of Journalists.

The killing of Abu Akleh was added to that complaint, it was announced on Friday.

The Biden administration says that it does not support an ICC investigation into the killing of Abu Akleh.

While insisting that it expects “full accountability for those responsible for her killing,” Washington has deferred to the Israeli military’s self-investigation protocol.

State Department spokesperson Ned Price has pointed to Israel’s investigation into the street execution of Iyad Hallaq, a Palestinian with disabilities and autistic traits, as an example of Israel’s ability to investigate itself.

Hallaq’s family, however, characterizes the Israeli probe as a cover-up.

The young man would record his walk to and from his school for adults with disabilities every day but his phone was returned to them with its contents deleted.

Meanwhile, Israel claims that all 10 cameras in the area were somehow not working at the time that Hallaq was shot dead by police as his teacher pleaded for them to stop.

Israel is quick to release footage showing its forces executing Palestinians when it thinks it supports its narrative of events, as it did immediately after Abu Akleh’s killing.

A video montage published by Israel shortly after Abu Akleh’s death suggested that she was killed by a bullet fired by resistance fighters.

Israel’s video was swiftly debunked by the Israeli human rights group B’Tselem.

A field investigation by that group found that it would have been physically impossible for any bullet fired by the fighters in the video distributed by Israel to have hit Abu Akleh.

Israel also released heavily edited clips of footage from soldiers’ body cameras that morning:

If Israel sits on the full, unedited body camera footage, it is all but certain because it would prove the guilt of its soldiers.

Israel has never released the footage of the 2016 shooting death of 16-year-old Mahmoud Shaalan, a US citizen, at a West Bank checkpoint where presumably numerous video cameras would be present.

The State Department, rather than pressing Israel for a full and transparent investigation, omitted reference to Shaalan’s killing in its annual human rights report.

Unlike in the case of Shaalan, the White House is being pressed by Congress to launch an American investigation into Abu Akleh’s killing.

Dozens of US lawmakers signed onto a letter calling on the FBI to investigate her death.

Another Palestinian with US citizenship, 78-year-old Omar Assad, died earlier this year from a stress-induced heart attack while being arbitrarily detained and physically abused by Israeli soldiers, who abandoned his body when they saw he wasn’t breathing.

Israel initially lied about the circumstances of Assad’s death, claiming that he was released alive.

A perfunctory “internal” investigation resulted in light disciplinary actions against three officers involved.

A slap on the wrists of low-ranking officers was apparently satisfactory for the US State Department, despite its stated expectation of “a thorough criminal investigation and full accountability.”

One of Assad’s daughters stated in an op-ed published by The Washington Post that “the State Department’s response thus far has been grossly inadequate.”

As in the case of Omar Assad, the State Department, like Israel, appears content for Shireen Abu Akleh’s killing to drop off of the radar.

On Friday, a Biden administration official told Israeli media that the US would not launch an investigation and said that it hoped the Palestinian Authority would share evidence with Israel by handing over the bullet that killed the journalist.

The deaths of two US citizens in the course of military operations in the West Bank this year wasn’t enough to shake Washington’s “ironclad support for Israel,” as reaffirmed by Biden’s national security advisor Jake Sullivan during a meeting with Israeli defense minister Benny Gantz last week.

That support is expressed by $3.8 billion in US military aid for Israel each year. Israel received an additional billion in assistance in 2022 to “replenish” its Iron Dome missile defense system following last May’s offensive in Gaza.

But sustained international attention on Abu Akleh’s killing may prove increasingly disruptive to business as usual between Washington and Tel Aviv.

Pressed on the apparent double standard of supporting the ICC investigation in Ukraine but not Palestine, Ned Price, the State Department spokesperson, reiterated that “we remain committed, as successive American administrations have, to [a] two-state solution.”

Al Jazeera, Abu Akleh’s employer for 25 years, announced on Thursday that its legal team would refer her “murder case file to the International Criminal Court in The Hague.”

The broadcaster said that it would also include “the Israeli bombing and total destruction of Al Jazeera’s office in Gaza in 2021, as well as the continuous incitements and attacks on its journalists operating in the occupied Palestinian territories.”

Three Palestinian human rights organizations filed a separate submission to the tribunal in The Hague this week concerning Israel’s assault on Gaza in May last year.

Some 240 Palestinians were killed and nearly 2,000 more injured during the crushing 11-day assault.

Paralysis at ICC

During a conference at The Hague on Monday, Raji Sourani, the director of the Gaza-based Palestinian Center for Human Rights, stated that the ICC’s Palestine investigation hasn’t moved “one millimeter” since British barrister Karim Khan began his term as chief prosecutor last June.

The Palestine investigation was opened by Khan’s predecessor, Fatou Bensouda, after a lengthy preliminary investigation and despite staunch opposition by Israel and the US.

Meanwhile, Sourani said, Khan is personally soliciting donations from state parties to the resource-strapped court to support its investigation in Ukraine launched after the Russian invasion earlier this year.

Khan has visited Ukraine twice but has not made any public statement on Palestine, even after Palestinian human rights groups representing victims to the court were declared terrorist organizations by Israel last October.

As the new chief prosecutor appears eager to protect, if not pursue, the interests of Washington and its allies, the already tattered credibility of the ICC is at perhaps an all-time low.

Khan dropped the US from its war crimes probe in Afghanistan after years of intense pressure from Washington on the court and reprisal measures against Bensouda.

And curiously, Kevin Jon Heller, Khan’s special advisor on international criminal law discourse, is slated to deliver a lecture on “accountability for the crime of aggression” with regards to Russia and Ukraine. He will be doing so at an Israeli university built partly on occupied Palestinian land and which serves as the academic engine for the colonization of Palestine.

With the court’s reputation on the line, the ICC needs Palestine just as much as Palestine needs the ICC, Shawan Jabarin, the director of Al-Haq, said during the conference at The Hague on Monday.

But the tribunal needs to feel public pressure to proceed with the Palestine investigation, Boston University professor Susan Akram said. She meanwhile emphasized that ICC prosecutions are “necessary but not sufficient” to end impunity in Palestine, given the court’s limited scope – temporally, geographically and in terms of its legal framework.

“Palestine is the final test of the ICC’s credibility,” Triestino Mariniello, a legal representative for victims in Gaza, said during the event.

“Palestine, Afghanistan and Iraq were really the kind of cases for which the court was established,” Mariniello added.

But whether the victims of the world’s sole superpower and its ally can access justice is an open question.

Shireen Abu Akleh’s death demonstrates the disregard Israel has for Palestinian lives, how it whitewashes its responsibility for Palestinians’ deaths, and how its powerful allies shield it from accountability.

And the violent and untimely death of a journalist who was a household name throughout Palestine and the Arab world may also prove the final test of the credibility of the world’s supposed court of last resort.

Maureen Clare Murphy is senior editor of The Electronic Intifada.