Why HRW is calling for an ICC inquiry into Israeli 'war crimes'

A Human Rights Watch investigation accused Israel and Palestinian armed groups of committing war crimes during an 11-day Israeli offensive on the Gaza strip in May, and called for an International Criminal Court inquiry into their violations during the assault.

The investigation focused on three Israeli strikes that killed 62 Palestinian civilians in this period, concluding that there were no evident military targets in the vicinity during the assault. It said other strikes also are likely to have violated international law. Some 260 people were killed in Gaza, including at least 67 children, according to Gaza’s health ministry. One soldier and twelve civilians, including two children, were killed in Israel.

“Israeli forces carried out attacks in Gaza in May that devastated entire families without any apparent military target nearby,” Gerry Simpson, associate crisis and conflict director at Human Rights Watch said.

The report also said Hamas and other Palestinian armed groups committed unlawful attacks by launching more than 4,000 unguided rockets and mortars into Israel and HRW will release its findings regarding them separately. 

The HRW’s investigation into the crimes during the Israeli aggression on Gaza in May wasn’t the first. In May, Amnesty International said Israel had a pattern of targeting residential homes in Gaza and called the rockets fired from Gaza by Palestinian armed groups into Israel unlawful. Some other human rights organisations and Amnesty also have called for an ICC investigation after the May attacks.

Why do human rights groups insist on a criminal investigation by ICC?

Failure to investigate the war crimes ‘seriously’

According to HRW’s Simpson, a need for an ICC investigation stems from authorities’ failure to investigate laws of war violations committed in or from Gaza. 

“Israeli authorities’ consistent unwillingness to seriously investigate alleged war crimes, as well as Palestinian forces’ rocket attacks toward Israeli population centers, underscores the importance of the International Criminal Court’s inquiry.”

For Toby Cadman, International law specialist and co-founder of the Guernica Group, the sole purpose of such investigation is to seek justice, even though a symbolism of such investigation would play its part.

“This is about change. This is about holding people accountable for their crimes. Symbolism won’t change that. Real action might,” Cadman told TRT World.

While Israel refuses to recognise ICC’s jurisdiction, says its probe is politically motivated.

So far, Israel has performed over 30 criminal probes and its military is conducting investigations to determine whether rules had been breached during the attacks on Gaza. However, HRW calls these investigations “whitewashing” and points out that the organisation’s researcher’s access to Gaza to conduct further investigations was blocked by Israel.

Cadman said that it matters not whether Israel accepts the jurisdiction of the ICC or not and Israel’s complaints of being unfairly targeted will have little impact.

“The evidence will speak for itself.  The question is whether Israel will agree to hand over any person charged by the ICC.  That will be a defining moment for both Israel and Palestine,” he said.

“Do they wish to be considered democracies governed by the rule of law and the application of international treaties or do they wish to become pariah states that turn their backs on fundamental policies of international law.”

Hamas, on the other hand, is supportive of the international court’s probes.

ICC’s competence of having jurisdiction on Palestinian lands

Cadman said it’s clear that the crimes, as alleged, by all parties to the hostilities, fall under the jurisdiction of the International Criminal Court in The Hague and that those responsible could face charges for war crimes or crimes against humanity.

“It is clear that Palestinians continue to live under a system of Apartheid, which amounts to a crime against humanity if committed as part of a state policy, is systematic or widespread, and constitutes an attack on the civilian population,” Cadman said stating that the situation in the Occupied Palestinian Territories certainly meets that criteria.

He said both parties did not satisfy the test of distinction under international law as their attacks didn’t aim at military targets.

In May, the United Nations Human Rights Council launched an investigation into whether Israel and Hamas committed crimes. 

Michelle Bachelet, the UN high commissioner for human rights, earlier told the council that deadly Israeli strikes on Gaza might constitute war crimes and Hamas rockets into Israel had violated international humanitarian law.

Israel, however, rejected the resolution. According to Karim Jubran, spokesman for the Israel-based human rights organization B'Tselem, what distinguishes this UN resolution is the competence of the International Criminal Court to have jurisdiction over Palestinian lands.

Speaking with Voice of Palestine radio, Gibran said the previous investigation committees were being obstructed and called for implementation mechanisms in the committee to enhance the accountability of the occupation in accordance with the law.

In February 2021, the ICC ruling changed the course of its probes over Palestine saying that it has jurisdiction over international crimes committed in the entirety of the Occupied Palestinian Territories, including East Jerusalem. This would include the crimes against humanity of apartheid or persecution committed in that territory.

In March 2021, the ICC Office of Prosecutor announced the opening of a formal investigation into the situation in Palestine. In mid-May, the Hague court said that May incidents could be included in its war crimes probe that encompasses incidents dating back to 2014.