Palestine at the International Criminal Court: Potential and Problems – An Analysis

Part I – Going to the ICC

The International Criminal Court (ICC) was designed as a vehicle for the prosecution of the most heinous of crimes committed by individuals in positions of state authority – those military officers and politicians at the top of a national chain of command. Until recently ICC prosecutions have been limited to leaders of small and weak states. This is not because the leaders of powerful nations are not sometimes culpable, but rather because no member state of the ICC has yet brought a relevant complaint.

This situation is about to change. In November 2012 Palestine achieved official observer status within the United Nations and this position allowed it to join the ICC.

The Palestinian National Authority (PNA) hesitated to take this next step as long as “peace negotiations” with Israel were ongoing. But by the spring of 2014, the latest round of such talks had proved as fruitless as their many predecessors. And so the Palestinians went ahead and signed the treaty that would make them a member nation of the Court – a status that becomes official in April 2015. Palestine has already requested the Court to begin a preliminary investigation of Israel’s actions within Palestinian territory (the Occupied Territories) during the 2014 invasion of Gaza. It is looking for indictments of Israeli leaders on war crimes charges.

This has made the Israeli government and its patron in Washington very angry. The U.S. Congress has sworn to defund the PNA, and the Israelis have sworn to “dissolve the ICC.” The reason for the anger rests on the fact that the evidence for the commission of war crimes by Israel is overwhelming.

Part II – Evidence

It is to be noted that even as the ICC begins its own formal investigation into Israeli behavior, the United Nations Human Rights Council has appointed a three-member independent commission of inquiry into possible violations of international law and human rights during the 2014 invasion. Its report is due this March. In the meantime Amnesty International, Human Rights Watch, and the Israeli human rights organization B’Tselem have all brought out their own independent reports.

Roughly, here are the facts as they are presently known:

• About 2,200 Palestinians, mostly civilians, were killed in the period between July 8 and August 26. According to United Nations estimates 1,473 of these were civilians, including 527 children and 299 women. According to the Palestinian Ministry of Health, 11,100 were injured, including 3,374 children, 2,088 women, and 410 elderly. This high casualty rate has been attributed to Israel’s “reckless and disproportionate use of deadly force in densely populated urban areas.”
• In comparison, 71 Israelis were killed, of whom 4 were civilians; 469 Israeli soldiers were injured, as were 261civilians.
• The UN estimates that Israeli action destroyed 18,000 housing units, permanently displacing around 108,000 Gazans. In the process Israel specifically targeted the civilian homes of Palestinian political and military leaders.
• The Israelis also targeted the Gaza electrical grid, indefinitely knocking out the Gaza Strip’s only community-wide power plant.
• The destruction of the power plant caused the water treatment facilities to shut down. Thus 450,000 people were cut off from the municipal water system. Israeli tank fire also targeted reservoirs and individual wells. By the way, it doesn’t take a war for the Israelis to deny water to Palestinian communities. On 11 February 2015 it was reported that Israeli soldiers destroyed a thousand-meter pipeline supplying water to Palestinian communities in the northern Jordan Valley.
• Israeli tank fire destroyed Gaza’s largest sewage treatment plant.
• The UN reports that 22 schools were destroyed and 118 damaged, including UN schools sheltering displaced civilians. To this must be added the fact that an estimated that 373,000 children have been traumatized to the point of needing professional “psychosocial support.”
• Israel targeted hospitals and medical clinics: 24 medical facilities were damaged as a result.

Part III – The Embedded Enemy Argument

The Israelis make the case that Hamas fighters embedded themselves within the civilian population and that is the reason for the high number of civilian casualties. This excuse does not account for their widespread and obviously purposeful destruction of civilian infrastructure.

Even if there is some truth to claim of an intermingling of fighters and the general population, one can ask why the resistance fighters would do this? Is it a voluntary, and therefore a callous and uncaring act? Or do they really have no choice? The latter is actually more likely because the Israelis have made Gaza into one of the most crowded places on the planet. Repeated expulsions of Palestinians from Israel into the Gaza Strip as well as the Israeli-Egyptian blockade, which prevents people from leaving, has resulted in 1.8 million Palestinians crammed into a 139 square mile area. The place is often referred to as an open-air prison or ghetto. It can argued that it is Israeli policies that have forced Gaza’s resistance fighters into civilian areas.

Even more damning is the fact that there is a historical pattern to Israeli attacks on civilians, as well as civilian infrastructure. In other words, there is a conscious, purposeful strategy designed to produce the high civilian casualties through the practice of collective punishment. This strategy is as old as the state of Israel itself and is based on a hard-line, indeed an extremist interpretation of the concept of an Iron Wall – first propounded by the neo-fascist Zionist leader Vladimir Jabotinsky. The purpose of an Iron Wall strategy was, and still is, to make the cost of resistance so high that the Palestinians will simply give up. This tactic has actually worked when it comes to some Arab governments, such as those in Jordan and post-Nasser Egypt. It may have also influenced the position of Mahmoud Abbas and the PNA. However, it has never worked on the Palestinian population in general or resistance groups such as Hamas.

Whether the Iron Wall strategy works or not is not the issue for the UN or ICC. Collective punishment and the purposeful destruction of civilian infrastructure are acts in contravention of international law. They are war crimes.

Part IV – The Argument of Self-Defense

The Israelis have always said that their wars are defensive ones and that, of course, they have a right to defend their country and people. It is within that context that they interpret the Palestinian decision to go to the ICC. As Israel’s Foreign Minister Avigdor Lieberman asserts, the move “only aims at attempting to impact Israel’s ability to defend itself.”

Leaving aside the question of the legitimacy of Israel within the pre-1967 borders, the consensus of the vast majority of world governments is that the West Bank and Gaza Strip are occupied territories and that Israel has certain obligations under international law toward the people of those lands. Placing settlements of Israeli citizens into these territories and the purposeful impoverishment of their indigenous populations are illegal acts under international law.

Also, as a point of sheer logic, Israel’s violent and punitive reactions to what is actually Palestinian resistance to an occupation illegally administered, cannot accurately be called “self-defense.” Put another way, if you break into your neighbor’s house and he resists you, whereupon you shoot him, you cannot claim you did it in self-defense.

Most Zionists will protest that the West Bank and Gaza Strip are not occupied territories but rather are biblically parts of Israel proper or, perhaps, “contested territories.” However, beyond the Zionists’ own ideological circle, no one else believes these are credible arguments and it is highly unlikely they would be taken seriously by the ICC.

Part V – ICC Actions: Potential and Problems

The possibility of finally breaking through the facade of Zionist justifications and U.S. obfuscations, and actually branding Israel’s policy makers for the aggressors they are, is very encouraging. And, given the evidence, actual indictments should be returned. This outcome would give a big boost to the Boycott movement against Israel and, one would hope, undermine Zionist influence in the U.S. Congress and other Western governments.

However, it remains doubtful that any Israeli will be successfully brought to trial. Indeed, the dilemma such indictments will cause Western governments that are member states of the Court will be acute. For what happens if an indicted Israeli travels to France, the United Kingdom or Germany? After all, it could well be that Prime Minister Netanyahu will be charged. Will these governments honor their treaty obligations and comply with outstanding warrants issued by the ICC? Or will the prevailing Zionist influence in these countries lead them to defy the Court and thereby undermine the rule of law? It is by no means guaranteed that any of them will opt for the law.

Palestine’s request that the ICC take up Israeli behavior during its summer 2014 invasion of Gaza is a seminal cry for justice. It is also a seminal challenge to the Court and all its member states to see that international law applies to the strong and influential. As goes the judgment on Israel, so goes international law in our time.