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ICC departs from traditional practice of granting Israelis impunity from prosecution for war crimes

Feb 10,2021 - Last updated at Feb 10,2021

The International Criminal Court (ICC) has departed from the globe's traditional practice of granting Israelis impunity from prosecution for war crimes and has decided to take action against Israeli perpetrators for expelling, brutalising, expropriating, imprisoning and denying the rights of Palestinians who are indigenous to the country Israel has appropriated. Israelis have been committing these crimes since the establishment of their state in 1948 when 750,000 Palestinians were driven from their homes, lands villages, and cities in territory conquered by Israeli forces.

Until the ICC was founded in 2002, efforts to make Israelis accountable for their crimes floundered and failed due to pressure from Israel and its allies, especially the US. The ICC investigates breaches of international law and humanitarian law, charges, detains and tries individuals with genocide, war crimes, crimes against humanity and the crime of aggression. The ICC's mission is to "fight to end impunity" by providing individual accountability to ensure that such crimes no longer take place.  While its aims are laudable and cases should be brought globally wherever they occur, the ICC has been criticised for focusing on Africa. To become involved, the ICC has to be impowered by governments accepting its authority or the UN Security Council.

Palestine submitted a declaration accepting ICC jurisdiction on January 1st, 2015, over alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem", since June 13th, 2014.  Fifteen days later, the prosecutor opened a preliminary investigation into the situation in Palestine.  On February 5th, 2021, the Pre-Trial Chamber of the Court decided that its jurisdiction extends to "the territories occupied by Israel since 1967, namely Gaza, and the West Bank, including East Jerusalem". The court based its ruling on UN General Assembly resolution 67 of December 2019 which upgraded Palestine's UN membership to observer state and reaffirmed "the right of the Palestinian people of self-determination and to independence in their state of Palestine on the Palestinian territory occupied since 1967".

Now that the court has decided it has jurisdiction, chief prosecutor Fatou Bensouda can go ahead with the investigation she pledged to carry out in 2019 after the resolution was adopted. She said at that time that a criminal investigation would cover the 2014 Israeli onslaught against Gaza, Israel's response to 2018-19 protests along the Gaza border, and Israeli colonisation.

Israel's 50-day 2014 offensive devastated Gaza and killed 2,251 Palestinians, most of whom were civilians, and 67 Israeli soldiers, five Israeli civilians and one Thai worker. A new probe could be damning for Israel which has already been strongly condemned in earlier reports on this campaign.

Thousands of Palestinians participated in the 2018-19 largely peaceful "March of Return" rallies in Gaza but when militants attempted to crash the fence between the strip and Israel or threw stones and Molotov cocktails at Israeli forces, they fired tear gas, rubber bullets and live ammunition, killing 214 Palestinians and wounding 36,000. One Israeli soldier was killed and seven injured.

In an interview with the Jerusalem Post, Israeli law professor Yuval Shany argues that an investigation of Israel's colonisation enterprise could be particularly damaging. He says that application of the investigation to the 1967 territories is "a blow for Israel, as it allows the plaintiff to proceed with the investigation of the complaint that Israel committed a crime of 'transfer of population into occupied territory'".  So far, nearly 650,000 Israelis have settled in colonies in the West Bank and East Jerusalem in violation of Article 49 of the Fourth Geneva Convention which prohibits transfers.

Adam Keller from the Israeli peace group, Gush Shalom, summed up the ruling's potential impact by writing that the court "ruled unequivocally that [it] has full authority to hear and decide on Palestinian complaints of violations of International Law by the State of Israel and its army”.

“Thereby, the rules of the game have changed."

Until now, the only judicial authority hearing charges of abuse by the Israeli army has been Israel's own high court which, Keller argues, "remains extremely forgiving towards the occupation army" and rejects the "vast majority" of Palestinian complaints. He focuses, specifically, on destruction of Palestinian hamlets and homes and points out that cases can now be filed against Israeli officers, settlers, officials and ministers involved. Those found guilty could face arrest under international warrants if and when they leave Israel.

The ICC will also investigate Hamas for staging attacks against Israeli civilians. Since Hamas is armed with homemade rockets, drones and hot air balloons and kites that carry incendiary devices, there is no comparison with Israel's state-of-the-art warplanes, smart bombs, artillery, and armed and surveillance drones. Little wonder Hamas welcomed the Court's decision. There is litle risk that its personnel will travel to countries where they could be arrested.

As could be expected, the court's ruling was challenged by Israel and its US partner, neither being signatories of the court's statutes. Israeli Prime Minister Binyamin Netanyahu castigated the ICC, predictability, calling its investigations "pure anti-Semitism" and vowed to fight against its activities.  This is the line Israel has always adopted toward any individual or body investigating it for war crimes and crimes against humanity.

The Biden administration has also criticised the ICC's ruling on Palestine. The administration has not yet lifted sanctions imposed by Donald Trump's outfit against ICC justices and staff for probing alleged crimes perpetrated by US military personnel in Afghanistan. ICC prosecutor Bensouda has been tasked with investigating alleged war crimes committed by the Taliban, its allies, the Afghan security forces and police, US military and Central Intelligence Agency personnel. Ever since the establishment of the ICC, Washington has rejected the possibility that the Court might bring cases against US citizens and officials as well as those from countries that are not among the 123 states that have signed the Rome Statute establishing the ICC.

The ICC has conducted investigations in Burundi, Uganda, the Democratic Republic of the Congo, Darfur, Sudan; the Central African Republic, Kenya, Libya, Côte d'Ivoire, Mali and Georgia while preliminary probes have been carried out in Gabon, Guinea, Iraq/UK, the occupied Palestinian territories, Nigeria and Ukraine.

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