The ICC’s new probe into Israeli war crimes changes everything

“The state of Israel is under attack this evening,” said Prime Minister Benjamin Netanyahu in a recorded statement, before lambasting a decision taken by the International Criminal Court’s Chief Prosecutor Fatou Bensouda to launch an investigation into Israeli war crimes in Palestinian territories.

The decision to move forward with an extensive probe into alleged Israeli war crimes comes six years after a preliminary investigation by the ICC tried to hold Israel accountable for multiple reports of human rights violations perpetrated against Palestinians. The probe will look at cases of extrajudicial killings, settlement constructions and violations of the Geneva conventions on warfare.

The enemy of my enemy

A Palestinian international lawyer instrumental in mobilizing the ICC probe spoke to TRT World on the condition of anonymity, asking to be identified with the fictional name Ghassan. He emphasized being unable to share sensitive details that could compromise the court’s legal strategy.

He however tells a gripping tale of Palestinian bipartisan groups, leaders, young activists and researchers coming together in spite of their differences over the years to raise this case to the ICC.

When asked what was the turning point, he lapses into silence for a moment before speaking, 

“If there was a turning point, it’s lost among the continuous violations of life, land and limb Israel has inflicted on Palestinians,” he reflects. 

No-man’s land

“This is a landmark case, and whether it succeeds or not, it has established a historic precedent. Israel used to enjoy complete impunity, but no longer. The ICC’s ruling that it can investigate war crimes in Israel means that going forward, Israeli war crimes can and will always be brought to international courts,” he says.

For years, Israel’s government carried out extensive media campaigns and lobbying to prevent an investigation from taking place. With the launch of the probe, warrants for the arrest of suspected Israeli war criminals can now be ordered, something Netanyahu’s government sought to avoid at all costs.

To increase the odds of success, the ICC Chief Prosecutor will only be looking at alleged crimes that took place since Israel’s relentless 50-day aerial bombardment and attack on Gaza in 2014. 

The attack killed nearly 2,310 civilians, and injured up to 10,895; 3,374 of whom were children. Nearly 1000 children were left permanently disabled.   

A UN OHCHR investigative commission reports that the Israeli air force carried out more than 6,000 airstrikes on Gaza during the 50-day offensive, displacing 273,000 Palestinians. OCHA estimates that nearly 373,000 children were in need of psychosocial support after the bombings. 

Ceaseless air raids damaged nearly 20 to 25 percent of Gazan homes, and destroyed a considerable sewage and electricity infrastructure, as well as 220 industrial factories, Gaza’s largest mosque, 10 out of 26 hospitals, and a number of TV stations. Nearly 203 mosques were also damaged by airstrikes.

Uphill climb

Even if the ICC’s Chief Prosecutor successfully carries out the war crimes probe, the case will still face challenges in producing admissible evidence for a legal trial. Israel has previously granted diplomatic immunity to war crime suspects after they became the focus of legal investigations. Israeli military personnel also enjoy functional immunity, blocking investigations on grounds of national security. 

The lack of internal accountability, however, is what makes the ICC’s case possible from the outset. The ICC can only intervene in cases where a country’s judicial branch is unwilling or unable to prosecute crimes.

With hundreds of unaddressed legal complaints and cases filed by Palestinian legal organizations, 80 per cent are closed without investigation, prompting the ICC to take a closer look with a legal mandate.

The probe will face serious challenges given the ongoing pandemic, a significant number of cases to investigate and the expectation that Israel will likely bar efforts to cooperate with the probe, and prevent investigators from entering Israel or Palestine.

The legal proceedings are unique in the overwhelming bipartisan Palestinian support. Before announcing the probe, Hamas and PLO legal experts worked tirelessly to gather the documentation and evidence that made the case feasible.
Of course, the probe will not only investigate Israeli war crimes, but possible Palestinian violations of the Geneva conventions as well. 

Staunch opposition

The ICC’s move was met by staunch US opposition, which claimed the court had no jurisdiction over Israel.

Both Israel and the United States initially signed the Rome Statute that marks a country as subject to the ICC, but refused to ratify it.

“The US position on the ICC is rooted in a fear that it could be held accountable for human rights violations and war crimes. To keep that from happening, they passed the American Service-member’s Protection Act in 2002, which will take any measure to keep US soldiers from being detained or questioned by the ICC,” says Ghassan.

“It’s a strange sense of morality they present,” he adds.

“Trump’s administration slapped sanctions on the ICC prosecutor, as an individual, because of her inquiry into US war crimes in Afghanistan. US President Biden hasn’t reversed them, though I expect he eventually will.”

Entrenchment

Ghassan shifts gears for a moment, and brings up Israeli non-compliance.

“Israel refused to ratify the Rome Statute for the same reasons. Speaking realistically, they’re only going to be held accountable to universally accepted laws that they have signed like the Geneva conventions,” he adds. 

When asked about the likelihood of the probe yielding actual prosecutions, Ghassan is critical, yet optimistic.

“It’s going to take years of the best investigative and legal effort the ICC has to offer. To even realise some measure of justice, Rome Statute countries need to stand together to protect the International Criminal Court while it does its work,” he points out.

“But it is possible. The ICC isn’t a joke, even if it is dismissed by countries that regularly violate international law. It was founded with momentum that came after the Nuremberg trials that saw Nazi leaders tried for war crimes. Even in the worst case scenario, the era of Israeli impunity and desecration of international law is coming to end, and I do not believe we’re looking at a worst case scenario.”

There is a caveat, however, adds Ghassan with a grimace.

“I expect Israel to crack down on the Palestinian legal experts and organizations that put together the case. It won’t make a difference because things are already in motion, but that won’t stop them. I expect revenge.”