Syed Qamar Afzal Rizvi
THERE is much and sufficient evidence to suggest
that an investigation into alleged Israeli and Pales
tinian war crimes committed in the West Bank, East Jerusalem and the Gaza Strip, is a justified legal recourse, the ICC announced. In an exemplary move, the ICC said it saw “no substantial reasons to believe that an investigation would not serve the interests of justice”. According to the statement released by the court’s chief prosecutor, Fatou Bensouda, on the court’s website on Friday said her office “has concluded with the determination that all the statutory criteria under the Rome statute for the opening of an investigation have been met”.
The International Criminal Court (ICC), which seats in The Hague, was formally established by virtue of the 1998 Rome Statute and consequently began functioning in 2002. Its credo is to prosecute individuals: suspected of having committed war crimes; crimes against humanity; and genocide; and in the future, crimes of aggression. Notwithstanding its initial support for the idea of the court, Israel levelled unwarranted apprehensions that the ICC would serve as an instrument of lawfare that could be used against it. Thus, having a fear of its own guilt, when an article was incorporated into the Rome Statute— defining a transfer of the population of an occupying nation to occupied territory as a war crime, even in the absence of force, and thus liable to incriminate Israelis settling in the West Bank— Israel decided not to ratify the statute or become a member of the ICC.
Ms Bensouda said charges could be filed against members of the Israel Defence Forces. She also said there was reason to believe members of Hamas and Palestinian Armed Groups could be charged. It is understood that she focused her preliminary inquiries, in a case the Palestinians brought under the State of Palestine, on issues like Israel’s building of settlements and its military operations in Gaza, our correspondent adds. The ICC solicitor Bensouda intends to investigate the 2014 Gaza war; the “Great March of Return” along the Gaza border that began in March 2018, Israeli settlement activity in the West Bank and Jewish building in east Jerusalem. She would have to focus on the IDF’s culpable, disproportionate response and willful killing. With regard to Hamas and Palestinian armed groups, she will examine their rocket attacks, willful killing, use of human shields and torture. Palestinian teenager Mohammed Abu Khdeir who was kidnapped and murdered in July 2014 in Jerusalem by Jewish extremists could also be included.
And yet the response coming from Washington is not surprising. “We firmly oppose this and any other action that seeks to target Israel unfairly,” Secretary of State Mike Pompeo said. “We do not believe the Palestinians qualify as a sovereign state, and they, therefore, are not qualified to obtain full membership, or participate as a state in international organizations, entities, or conferences, including the ICC.” In the view of John Quigley, Professor Emeritus at Ohio State University and the author of ‘The Statehood of Palestine: International Law in the Middle East Conflict. ’if a state is not a party but files a declaration conferring jurisdiction on crimes within its territory, then anyone who commits a crime in the territory of that state may be prosecuted. Veritably, the ongoing situation in Occupied Palestinian Territories (OPT) vis-à-vis the Israeli policies needs to be examined via two instruments of international law regime: international humanitarian law, including the rules of the law of occupation; and international human rights law.
International criminal law is also relevant as some serious violations may constitute war crimes. Thus, Tel Aviv’s policy of settling its civilians in occupied Palestinian territory and displacing the local population contravenes fundamental rules of international humanitarian law. Arguably, Article 49 of the Fourth Geneva Convention states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” It also prohibits the “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory”. Undeniably, The Hague Regulations prohibit the confiscation of private property. The Fourth Geneva Convention prohibits the destruction of private or state property, “except where such destruction is rendered absolutely necessary by military operations”.
“Accountability has, until now, been largely missing in action throughout the 52-year-old occupation,” Michael Lynk, the U.N. special rapporteur for the situation of human rights in the Palestinian territory occupied since 1967, said in a statement. “Over the years, the international community has adopted hundreds of resolutions through the United Nations condemning various features of Israel’s entrenched occupation of the Palestinian territory. Yet rarely has it ever combined criticism with consequences for Israel,” he continued. “Now, the possibility of accountability is finally on the horizon.” “Having herself confirmed that there were reasonable grounds to believe that war crimes were committed by the Israeli Defence Forces during the raid on the flotilla, the prosecutor should waste no further time in opening an official and full investigation,” lawyers Stoke White stated. “The victims have renewed hope that the ICC will deliver justice and accountability.”
Yet with Israel’s intent to refuse to cooperate with a potential investigation by the ICC, the Israeli officials do have a fear that top officers of the IDF, as well as low-ranking soldiers, could be facing international arrest warrants, Israel’s Channel 12 reported. But as for the question of Israeli cooperation with the ICC’s pre-trial chamber in the coming 120 days, an official in the PMO said: A decision will be reached after the legal teams make their recommendations.” Israeli authorities have tabled the argument by emphasizing that there is no state of Palestine, and the Palestinian Authority is not sovereign in the territory in question. It argued that signing the Rome Treaty did not grant Palestine statehood status before the ICC. Nevertheless, despite Israel’s argument, the ICC maintains that it has limited and contextual jurisdiction over the nationals of countries such as Israel.
—The writer, an independent ‘IR’ researcher-cum-analyst based in Pakistan, is member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies, also a member of Washington Foreign Law Society and European Society of International Law.
Syed Qamar Afzal Rizvi