Politics determines ICC investigation of Israeli war crimes

Dec 24, 2019

After five years of procrastination, the International Criminal Court’s prosecutor has announced an investigation into alleged Israeli war crimes in the West Bank, East Jerusalem and the Gaza Strip. From Palestinians’ perspectives that may sound encouraging, but the rules of international law will be no match for politicians’ fascination with violence as the way to govern.

Without international law to set standards of civility and the means of respecting universal human rights, the world rushes to a violent amorality where order is set by states which possess overwhelming force.

The ICC’s deliberations will require a struggle for truths about the crimes committed against Palestinians or indeed by Hamas, yet the idea of verdicts being reached by a court adjudicating carefully collected evidence has been immediately dismissed. Israeli Prime Minister Netanyahu says the ICC’s decision is ‘a dark day for truth and justice.’

In a post truth age, it’s time to laugh to scorn the Netanyahu lying and cruelty. Before critics trot out the retort that any criticism of an Israeli leader amounts to anti-Semitism, let’s establish that criticising the illegal and violent policies of a state has never amounted to prejudice towards its people.

Controversy over what is legal will certainly affect the ICC investigations and how they are perceived. The Israeli Attorney General claims that Palestine is not a state and therefore cannot delegate jurisdiction to the ICC to put Israel on trial for war crimes. In response, the Israeli human rights organisation B’Tselem says the ICC decision to open an investigation was the only possible outcome and that ‘Israel’s legal acrobatics are an attempt to whitewash crimes and must not be allowed to to stop international legal efforts to hold it to account.’

The Trump/Pompeo claim that Israeli settlements on Palestinian lands should be considered legal is another example of the Humpty Dumpty insistence, ‘Things mean what I say they mean, nothing more, nothing less.’ But former Special Rapporteur on Human Rights in the Occupied Territories and Professor of International Law John Dugard concludes that Israel’s settlement enterprise constitutes apartheid resulting in the forced displacement of thousands of Palestinians from their homes which amounts to a crime against humanity.

Dugard’s conclusion matches the December 23 2016 Resolution 2334 of the UN Security Council which voted 14-0 (the US abstained) that Israel’s settlement activity constituted a flagrant violation of international law.

The rules of international law need to be known, asserted and respected. Article 8 of the 1998 Rome Statute established the right of the ICC to investigate war crimes, and Article 49(6) of the Fourth Geneva Convention identifies the protections for peoples subject to rule by an occupying power.

By all means let the ICC be guided by such laws but let’s not be bystanders in a legal ping pong as to whether war crimes have been committed against the Palestinian people. Easily obtained evidence can be placed before the court of public opinion. Atrocities committed against the Palestinians have been glaringly obvious. A brutal military occupation has lasted for over 50 years. The cruel siege of Gaza is into a 14th year.

Israeli Operation Cast Lead in 2009 and Operation Protective Edge in 2014 have been described as Gaza wars yet the extent of fatalities and massive destruction in these conflicts makes them look in retrospect like organised slaughters. Amnesty International figures indicate that over 1,400 Palestinians, including over 300 children, were killed in 2009. Israel lost 10 combatants and 3 non combatants. In 2014, Over 2,000 Palestinians were killed including almost 500 children. Sixty six Israeli personnel and six civilians died.

In response to the Palestinian March of Return protests which started in 2018, the Guardian reports that over 200 Palestinians have been killed, some shot in the back almost all by Israeli sniper fire. The dead included women and children, clearly marked medical personnel, journalists plus an observer in a wheel chair. Over 28,000 thousand Palestinians have been seriously injured, many sustaining injuries which have disabled them for life. Reports suggest that one Israeli lost his life.

These figures give only a fraction of evidence that the ICC might ponder, but let’s cease waiting for invisible lawyers to take ages to deliberate, imperative though international law is. Let’s realise and resist the bully boy politics that have determined such matters.

In their landmark study, ‘Power and Morality, Who Shall Guard the Guardians?’, Pitirim Sorokin and Walter Lund concluded, ‘The behaviour of ruling groups tends to be more criminal than those of the people over whom they rule.’

In his recent memoirs, distinguished US investigative reporter Seymour Hersh wrote that after a life time investigating conflicts, certain phenomena became crystal clear. The powerful prey mercilessly on the powerless up to and including mass murder. The powerful lie about their conduct and the media usually let the powerful get away with it.

Those conclusions highlight political considerations which the court of public opinion should know and which the ICC cannot afford to ignore.

Stuart Rees OAM is Professor Emeritus, University of Sydney and inaugural recipient of the Jerusalem (Al Quds) Peace Prize.

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