Why the ICC should prosecute Israel for war crimes

Posted on April 5, 2012


I never went to law school. I never thought about doing a conversion course either. A lawyer told me law was boring. Law is boring.

But sometimes it can be simple too.

This week’s decision by the International Criminal Court (ICC) not to investigate Israeli “war crimes” in Gaza between 2008-2009 has been accused of “political bias” by Amnesty International.

The international court based its decision on the ruling that the Palestinian Authority (PA) is not recognised as a state by the United Nations. The Prosecutor, Jose Luis Moreno Ocampo said the court “cannot” open an investigation on these grounds.

The case for “war crimes”

Originally marketed as a “rescue operation” to return abducted IDF soldier, Ghilad Shalit, Operation Cast Lead escalated into a full-scale war between Israeli and Palestinian paramilitary groups led by Hamas.

According to Israeli human rights charity B’Tselem, between December 27, 2008-January 18, 2009, 1,389 Palestinians were killed (773 did not take part in hostilities, and more than a third of that number were children) and 5,300 were wounded (350 of them seriously). Nine Israelis were killed by Palestinian paramilitary attacks (four more by friendly fire), and over a hundred more injured.

Using the ICC’s own criteria – the 2002 Rome Statute, essentially its founding document – along with independent accounts, Israel (and Hamas) committed war crimes in Gaza between 2008-2009.

Under Article 8 of the statute (the one given over to “war crimes”), Clause 2(a) defines them as “grave breaches of the Geneva Conventions of 12 August 1949.” They include:

(i)           Wilful killing;

(ii)         Torture or inhuman treatment;

(iii)       Wilfully causing great suffering, or serious injury to body or health;

(iv)       Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(v)         Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

(vi)       Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii)     Unlawful deportation or transfer or unlawful confinement;

(viii)   Taking of hostages.

In its third clause, the ICC defines other war crimes possibly committed in international conflict. They include:

  • Intentionally directing attacks against a civilian population;
  • Against objects “which are not military objectives”
  • Or “buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected.”

As far as I’m aware, excluding sub-clause (v), it is alleged Israel committed all of the above war crimes during Cast Lead, and in the iron-grip it has held over the Gaza Strip since.

Rather than detailing each and every allegation here, see the 2009 Goldstone Report instead. But, needless to say, the list includes the “deliberate targeting” of civilian centres, a shockingly high infant casualty/fatality rate, use of human shields, the destruction of civilian infrastructure (roads, hospitals, power stations, mosques, etc.) and even a school used by the UN for holding injured Palestinians.

The report advised a full investigation on both sides for what happened in Gaza. According to B’Tselem: “Not only is an independent investigation required by law, it is necessary to meet the public’s right to know what the state did in its name in the Gaza Strip.”

No such investigation has happened yet – other than the odd “principled probe” by the IDF – so presumably it is up to the international community to administer justice for the 1,389 Palestinians and 13 Israelis who died. The ICC would have been a great opportunity to belatedly address the issue of war crimes on the Gaza Strip.

Off on a technicality

But there’s a problem: statehood.

Palestine is not a state as recognised by the UN – or rather by the richest countries on the planet (including the US, Canada, the UK, France, Germany, Australia and, of course, Israel). Roughly 80% of the world’s nations recognised Palestine when Mahmoud Abbas walked up the steps to the UN building in September last year.

The ICC says in its Preamble that signatories must affirm:

that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.

Does the 2008-2009 Gaza War not constitute one of “the most serious crimes of concern to the international community as a whole”?

Judging by Palestine’s ghost history in the United Nations it does. As Bill Blum notes in Rogue State, between the (arbitrarily chosen) period 1978-1987, the United States has blocked any vote after vote condemning Israeli actions in the Middle East, or aiming to improve Palestinian conditions.

Between those years there are 37 “No” votes, on proposals ranging from the “demand that Israel desist from certain human rights violations” (on December 12, 1979: with 111 votes blocked by the United States and Israel) to the slightly more simple/desperate: “rights of the Palestinian people” (on December 10, 1984: with 127 votes blocked by the United States and Israel again). What about in 2008, 2009, or even last year? It’s no different.

“The crime in question”

Finally, the Palestinian tribunal bid fulfills the ICC’s criteria because it abides by Article 12 (3) of the Rome Statute:

If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question.

The PA sent a letter to the ICC unilaterally accepting the jurisdiction of the Court in the war crimes tribunal. What else could they have done?

So if we agree there is a case for war crimes from the 2008-2009 Gaza War, the ICC provides an avenue for their investigation by both the “State which is not a Party to this Statute” (i.e. Palestine) or by a “Party State” who regards the investigation of importance to the international community (i.e. Great Britain). Can we expect a Party State to act in favour of Palestine for once?

Within the present circumstances, it was up to bodies like the ICC to use these avenues to bring war criminals to justice.

So, as has happened so many times before, Israel gets off on a technicality and Palestine loses out. The Palestinians cannot prosecute because they do not have statehood, but they cannot have statehood because the international community will not allow them.

Without an independent investigation, these are not war crimes. They never happened, nothing ever happened, as Harold Pinter would say. They were just business as usual; highly illegal, immoral and completely invisible.

Posted in: Politics