Tuesday, June 15, 2021
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Let The Investigation Begin: The International Criminal Court, Israel And The Palestinian Territories


International tribunals tend to be praised, in principle,
by those they avoid investigating. Once interest shifts to
those parties, such bodies become the subject of
accusations: bias, politicisation, crude arbitrariness. The
United States, whose legal and political personnel have
expended vast resources on the machinery of international
courts and jurisprudence, remains cold to the International
Criminal Court. The sceptics have tended to win out in
Washington, restraining any consent to its
jurisdiction.

The Trump administration made a point of
imposing sanctions
on court staff, specifically
targeting chief prosecutor Fatou Bensouda, whose entry visa
to the US was revoked. The moves were instigated in response
to investigative efforts by the prosecutor into the alleged
commission of war crimes by US, Taliban and Afghan forces in
Afghanistan.

Israel has also kept a witheringly
hostile eye towards the activities of the ICC. The
acceptance by Palestinian authorities in 2015 of the
court’s jurisdiction heralded the next troubling step in
scrutinising Israeli actions in the occupied
territories.

In December 2019, Bensouda intimated
that there was “a reasonable basis to believe that war
crimes have been or are being committed in the West Bank,
including East Jerusalem and the Gaza Strip”. Of interest
was the 2014 Israel-Hamas conflict, Israel’s policy of
settlements in occupied territory and aggressive responses
to protests on the Gaza-Israeli border starting in March
2018.

Often forgotten by various critics of the court
is that Bensouda did not exclusively target the activities
of the Israeli Defence Forces; she also included armed
Palestinian groups as potential perpetrators of such crimes.
Her concerns were duly formalised in an application to the
court as to whether such matters fell within the court’s
jurisdiction. Once resolved, an investigation could
commence.

To the ICC pretrial chamber, she submitted
“that the Court’s territorial jurisdiction extends to
Palestinian territory occupied by Israel during the Six-Day
war in June 1967, namely the West Bank, including East
Jerusalem, and Gaza.” She admitted that the Occupied
Palestinian Territory had a “unique history” with the
issue of Palestinian statehood having never been
definitively resolved. But the accession of the Palestinians
to the Rome Statute was an important factor in her
considerations.

In a 2-1 decision, the court found
that “Palestine qualifies as ‘the State on the territory
of which the conduct in question occurred’ for the
purposes” of the Rome Statute. This was so because
Palestine had been accorded the status of a non-Member
observer State in the United Nations, and in doing so,
“would be able to become party to any treaties that are
open to ‘any State’ or ‘all States’ deposited with
the [UN] Secretary General”. Palestine duly had “the
right to exercise its prerogatives under the Statute and be
treated as any other State Party would.” It also followed
that the territorial jurisdiction of the court “in the
Situation in Palestine extends to the territories occupied
by Israel since 1967”.

The majority, made up of Marc
Perrin de Brichambaut of France and Reine Adélaïde Sophie
Alapini-Gansou of Benin, were also not convinced that
“rulings on territorial jurisdiction necessarily impair a
suspect/accused’s right to challenge jurisdiction under
Article 19(2)(a) of the Statute.” (Article
19
covers, in its entirety, challenges to the
jurisdiction of the ICC or the admissible nature of a
case.)

The response from Israeli Prime Minister
Benjamin Netanyahu was one aged in the barrels of Israeli
foreign policy for years: criticism of its military actions
could only mean one thing. “When the ICC investigates
Israel for fake war crimes, this is pure anti-Semitism,”
he raged in a video
statement
. “The court established to prevent
atrocities like the Nazi Holocaust against the Jewish people
is now targeting the one state of the Jewish people.” The
court was investigating Israel for actions undertaken in
pure defence “against terrorists” whilst ignoring the
vicious activities of Iran and Syria. “We will fight this
perversion of justice with all our
might.”

Israel’s Ambassador to the UN Gilad Erdan
similarly
rebuked
the ICC for its “distorted and anti-Semitic
decision.” It was “an attack on Israel and all
democracies, undermining our ability to defend civilians
against terrorism.” Drawing in the country’s closest
ally, Erdan claimed that it was “no accident that both
Israel and the United States have refrained from becoming
members of this biased and political
institution.”

Despite such conflating bluster, much
needs to still take place. Bensouda’s term ends in June
and her replacement may see things differently. The nature
of responsibility being investigated also poses
difficulties. ICC defence attorney Nick Kaufman raises
a few points
. The use of any disproportionate use of
military force is one thing; investigating “the alleged
criminality of the settlement enterprise, which has been
considered part of Israeli government policy for
generations” raises another set of hurdles. The biggest
problem is obtaining probative evidence “that connects the
decision makers with the crimes that were allegedly
committed.”

US President Joe Biden and the State
Department under Antony Blinken are unlikely to be as
vicious as the Trump administration towards the ICC, but
remain clear about keeping Israel out of the international
court’s judicial orbit. Last month, a State Department
spokesman promised
that the administration would be revisiting the sanctions
regime. “Much as we disagree with the ICC’s actions
relating to the Afghanistan and the Israeli/Palestinian
situations, the sanctions will be thoroughly reviewed as we
determine our next steps.” The Biden administration
promises “to help the court better achieve its core
mission of punishing and deterring atrocity crimes” with
the prospect of even assisting in “exceptional
cases”.

The ICC decision was not one of those cases.
“The United States objects to today’s International
Criminal Court decision regarding the Palestinian
situation,” came the solemn
words
of State Department spokesman Ned Price. “Israel
is not a State Party to the Rome Statute.” Price promised
that the US would “continue to uphold President Biden’s
strong commitment to Israel and its security, including
opposing actions that seek to target Israel
unfairly.”

A formal statement
from the State Department took issue with what it considered
an overreach of the ICC in attempting to exercise
jurisdiction over Israeli personnel. “The United States
has always taken the position that the court’s
jurisdiction should be reserved for countries that consent
to it, or that are referred by the UN Security
Council.”

Such statements signal a possible
frustration of future investigative efforts, prompting the
American Civil Liberties Union’s Jamil Dakwar to issue
a reminder
. “It’s important to remember that the ICC
investigation would also target Palestinian perpetrators of
war crimes in the context of hostilities between Israel and
Palestinian armed groups, especially in the Gaza
Strip.”

Palestinian sources have been all praise for
the decision. The Palestinian Foreign Ministry called
it
a “historical day for the principle of
accountability.” Palestinian Authority Prime Minister
Mohammed Shtayyeh considered
the ruling “a victory for justice and humanity, for the
values of truth, fairness and freedom, and for the blood of
the victims and their families.”

Hamas official Sami
Abu Zuhri was also pleased, though decided to take from the
ruling a very
convenient reading
. “We urge the international court
to launch an investigation into Israeli war crimes against
the Palestinian people.” His tune, and that of Hamas, may
well change once the investigation gets going.

Dr.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College,
Cambridge. He lectures at RMIT University, Melbourne. Email:
bkampmark@gmail.com

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