By Arab News
By Osama Al-Sharif*
Five years after joining the International Criminal Court (ICC) and asking it to investigate Israeli war crimes, the Palestinian Authority is being rewarded with an historic decision by the court’s Chief Prosecutor Fatou Bensouda, who stated this week that there was sufficient evidence to investigate alleged Israeli and Palestinian war crimes committed in the West Bank, East Jerusalem and the Gaza Strip. She added that her office “has concluded with the determination that all the statutory criteria under the Rome Statute for the opening of an investigation have been met.”
If it goes ahead the court will investigate war crimes committed by Israel during the 2014 war on Gaza, in addition to the transfer of Israeli civilians into the West Bank since June 2014. It will also look into the use of non-lethal and lethal means by the Israeli army against persons participating in demonstrations (the Great March of Return) beginning in March 2018. The court will also investigate claims of war crimes committed by Palestinian armed groups accused of “intentionally directing attacks against civilians and civilian objects and using protected persons as shields.”
The decision has sent shockwaves across Israel’s political and military establishment. Prime Minister Benjamin Netanyahu described it as “a dark day for truth and justice” and was quick to accuse the ICC of anti-Semitism. Israel’s Attorney General Avichai Mandelblit argued that the court had no jurisdiction in the West Bank or Gaza. The Foreign Ministry said the The Hague had no authority to deliberate over the Israeli-Palestinian issue, adding that Palestine was not a sovereign state and therefore could not join the statute or grant the ICC its criminal jurisdiction.
The issue of jurisdiction will be fiercely contested by Israel and its allies. Bensouda said that she had referred the question back to the court to confirm the ICC’s jurisdiction over the occupied Palestinian territories. There is still a chance that the court may reverse the decision.
The decision has put Israel on the defensive. Even Israeli legal experts said that Israel’s occupation of the West Bank will be hard to explain or justify. Last week Mandelblit warned Netanyahu that annexing the Jordan Valley could spur an ICC investigation of senior army officers, civil service officials and heads of regional councils of West Bank settlements. While Israel is not a signatory to the ICC’s Rome Statute, it could still face legal consequences if the probe ends in incriminating it for war crimes.
The scope of the proposed investigation, which includes East Jerusalem, will focus on the building of illegal settlements, the transfer of Israelis into occupied territories, allegations of torture, summary killings and demolition of Palestinian homes.
Israel’s claim that the ICC has no jurisdiction over the West Bank is contradictory. It indirectly acknowledges that the territory is occupied – an illegal act – while claiming that a Palestinian state does not exist. Even more ironic was the Foreign Ministry’s assertion that the proposed probe constituted “the criminalization of the conflict which could only lead to more polarization between the parties, instead of a diplomatic process which brings them together.” What diplomatic process is Israel referring to? The Palestinians have been calling on Israel to negotiate a political settlement for more than a decade now and it is the absence of such a process that has driven them to the ICC as a last resort.
Reams of UN resolutions that back Palestinian rights and condemn the occupation have been issued during the past 50 years and Israel has ignored all of them. The US has taken sides and violated international laws and codes by recognizing Jerusalem as Israel’s capital and more recently when US Secretary of State Mike Pompeo stated that “The establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.”
The US and Israel will attempt to discredit the ICC – and the accusation that the court is anti-Semitic is only the beginning. Israel will try to redirect the focus from the occupation, which is at the core of the conflict, to Israel’s claim to a Jewish homeland. A biased White House will not hesitate to punish ICC officials in order to impede the court’s work.
But, if the ICC endures and the probe does go on, Israel stands to face a major legal challenge that threatens present and former officials. It is vital that the ICC withstands pressure and follows through with its investigation. For the Palestinians the ICC is a last resort. The UN has been unable to implement its resolutions and penalize Israel for violating international laws and conventions. Israel has been acting with impunity — thanks to blind support from the US. The credibility of the UN and its organizations has been shattered because of Israel which, ironically, was created by a UN resolution.
• Osama Al-Sharif is a journalist and political commentator based in Amman. Twitter: @plato010