DESPITE initial hesitance, the International Criminal Court (ICC) recently announced to begin an investigation into the war crimes committed in Gaza. Needless to say, an investigation of the alleged war crimes and the crimes against humanity ungrudgingly come under the ICC mandate or its de jure jurisdiction. And of course, it has been against this backdrop that Karim Khan, the ICC Prosecutor, told Reuters press agency on 12 October that the actions of Hamas militants in Israel and Israeli forces in the Gaza strip fall under the jurisdiction of the ICC, even though Israel is not a member state. Yet, the question stemming in global human right and international law community is: will an ICC investigation bring Israel to justice for its war crimes in Gaza?
The ICC method of investigation: Recently, in a parliamentary address, South African Foreign Minister Naledi Pandor accused Israel of “the murder of children and women” and called for the ICC to issue an arrest warrant for Israeli decision makers. ‘’Upon referrals by States Parties or by the UNSC, or on its own initiative and with the judges’ authorisation, the Office of the Prosecutor (OTP) conducts investigations by gathering and examining evidence, questioning persons under investigation and questioning victims and witnesses, for the purpose of finding evidence of a suspect’s innocence or guilt. OTP must investigate incriminating and exonerating circumstances equally’’.
Arguably, the ongoing Israeli atrocities in Gaza, by any fair yardstick of international legal standard requires an impartial inquiry since the victims of attacks—the innocent/non-combatants Gazans — amounting at the very least – to war crimes justifying an investigation by the Prosecutor of the International Criminal Court (ICC). According to the Reuter. The Prosecutor of the International Criminal Court on November 17 said he had received a joint request from five countries to investigate the situation in the Palestinian territories.
“The most evident crimes allegedly committed during the latest Israeli military operation are deliberate and intentional attacks on civilian targets and excessive use of force. These violations are nothing new. They have characterised every single Israeli military operation on besieged Gaza throughout the years, including attacks on schools, hospitals, religious sites and media offices.” “Even in this latest military operation, Israeli authorities seem to have violated the basic principles of the law of armed conflict, especially the principle of distinction, which forbids any country from directly attacking civilian targets, “The Israeli strikes were carried out on residential buildings at night, while the civilian population was asleep, in the presence of people who were not directly participating in the hostilities and without ongoing hostilities. Basically, they were not military targets”, according to international law expert Mariniello.
The pivots of international humanitarian law & ICC: The principle of necessity and the obligation of precaution, which provides that ‘the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.” Israel ’is in direct violation of these principles “because there has been no prior warning (despite) the awareness that civilians were in the building during the night.”
IHL has two key elements: The protection of non-combatants such as civilians or soldiers who have surrendered and restrictions on the type of warfare employed by a belligerent. IHL has two key elements. The protection of non-combatants such as civilians or soldiers who have surrendered and restrictions on the type of warfare employed by a belligerent. Israel has not ratified certain protocols in the conventions covering areas such as collective punishments, but the US and other countries regard these provisions as having entered customary international law and therefore binding on all states.
Why the ICC is charged of double standard: Israel’s systematic lack of accountability has been raised by various international human rights mechanisms. There is a growing concern in the international law community if the ICC can issue the warrants against Russian President Valdimir Putin alleging him of war crimes in Ukraine, as to why the ICC is unable to issue arrest warrants against Israeli premier Benjamin Netanyahu? The absolute truth upholds the western perceived geopolitical goals dominates the writ of international law. Since 2018, the UN Human Rights Committee (HRC) has been complaining of ‘a very low rate of criminal investigations, prosecutions and convictions concerning allegations of torture and ill-treatment of the Palestinians by the Israeli security forces. And yet arguably, the ongoing war in Gaza has crossed all its limits. Gaza is still occupied according to international law and it is subject to a blockade that entered its 17th year. The blockade has a devastating impact on the lives of the Strip’s residents, as highlighted by Palestinian, international and Israeli human rights organisations, which openly describe it as a humanitarian catastrophe.
The International Criminal Court (ICC) issued arrest warrants for Russian President Vladimir Putin and Commissioner for Children’s Rights Maria Lvova-Belova, despite the fact that neither Russia nor Ukraine are members of at a stalemate. How is one to explain all of this? Is this yet another case of double standards vis-à-vis the ICC method of investigation of alleged war crimes? It appears that the Court was not granted automatic jurisdiction to investigate crimes committed during the ongoing conflict. For many, Israel is unjustifiably taking the advantages of the US alleged war crimes in Afghanistan, Iraq and Syria. This is the time the western governments should revisit Israel’s pursuit of impunity.
Ironically, after a humanitarian pause of a few days in Gaza, Israeli authorities, once again, have stared its military offensive in a death, disease and food-stricken area of the Gaza Strip where already a million of Palestinians have been displaced. The world at large does need the answer of the Israeli genocide of more than 15000 Palestinians. The systematic targeting of a civilian population, as is the case with Israel’s attacks on the Gaza Strip, can be a “crime against humanity” and the continued silence of the International Criminal Court (ICC) over the matter is “utterly unacceptable,” according to a legal expert Abofoul who is an international lawyer based in The Hague.
—The writer, an independent ‘IR’ researcher-cum-international law 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. He deals with the strategic and nuclear issues.
Email: [email protected]
views expressed are writer’s own.
