At least 18,000 homes in Gaza were destroyed or rendered uninhabitable during the 2014 summer conflict. (photo: Ibrahim Khader/Getty)
If the ICC Is to Regain Credibility, It Must Investigate Israeli War Crimes in Gaza
31 July 15
If it is to retain any credibility, the ICC must investigate war crimes in Gaza
n a highly unusual pretrial chamber ruling on July 16, International Criminal Court (ICC) judges reversed a decision by the court’s chief prosecutor, Fatou Bensouda, not to investigate Israel’s assault on a Gaza-bound flotilla in 2010, which left 10 people dead.
The judges said she committed “errors of fact,”
reached “simplistic conclusions” by ignoring war crimes complaints and
the “unnecessarily cruel treatment of the ships’ passengers” and failed
to seriously consider the possibility that the deaths and injuries
caused by Israeli navy commandos were “systematic or resulted from a deliberate plan or policy to attack, kill or injure civilians.”
But Bensouda on Monday said she would not launch a
full criminal investigation into allegations of war crimes against
Israeli military and political leaders and naval forces. She has
appealed the judges’ ruling, which Israeli politicians and commentators
denounced as shocking. Yonah Jeremy Bob wrote in The Jerusalem Post, “The decision puts the ICC the closest it has ever been to intervening directly in the Israeli-Arab conflict.”
It is now up to an ICC appeals court to decide whether
to end Israel’s impunity. Upholding the pretrial chamber’s decision
would pave the way for considering the Palestinian Foreign Ministry’s
submissions presented to the ICC in June, after Palestine’s accession in
April to the Rome Statute, which established the ICC. The dossier
provides extensive evidence regarding Israel’s brutal 2014 assault on
Gaza, its treatment of Palestinian prisoners and the expansion of Jewish settlements in the occupied West Bank.
No Israeli official has been held accountable for
Israel’s indiscriminate attacks during its 2014 Gaza offensive, in which
2,251 Palestinians were killed — most of them civilians, including more
than 500 children. No serious investigation has been initiated to date.
Israel’s internal report published
last month adopts the official narrative, which whitewashes and
justifies the crimes by blaming the victims. In light of the legal cover
by Israel’s judicial system, the ICC offers the only avenue for
possible accountability.
The court’s decision on Bensouda’s appeal could go a
long way in determining the future of the ICC, which is criticized as a
venue to investigate and prosecute mainly African human rights
violators. The court has ignored allegations of war crimes and crimes
against humanity committed by Western leaders. If international law is
to function as an impediment to violence and high crimes, it must
function evenhandedly. The ICC has a chance to show that can happen.
Israel’s assault on Gaza
Since 2008, the Israeli military has launched three
lethal assaults on Gaza, killing thousands of people. Israel knew that
its military campaigns would cause significant civilian fatalities and
injuries, destroy civilian property and damage infrastructure and the
environment. There is strong evidence that Israel was applying the
Dahiya doctrine, a military strategy that, according to the United Nations Human Rights Council,
involves “the application of disproportionate force and causing of
great damage and destruction to civilian property and infrastructure and
suffering to civilian populations.”
Such attacks violate the principle of proportionality
and distinction, which forbids the deliberate targeting of civilians or
civilian property. Nearly 10,000 Palestinians were wounded during the
51-day assault on Gaza. Israel forces bombed 142 schools, including six U.N. schools where civilians took refuge, the coordinates of which were repeatedly communicated
to Israeli officials. Israeli soldiers shot and killed fleeing
civilians and those working to recover the bodies of the dead. Israeli
warplanes repeatedly bombed Gaza’s only power plant, destroyed one-third
of Gaza’s hospitals, 29 ambulances and 14 primary health care clinics, demolished 41 mosques and damaged an additional 120.
There is no question that Israel willfully caused
wanton destruction, great suffering and serious injury to body and
health. Tens of thousands of Palestinians lost their homes. Damage to sewage and water infrastructure affected two-thirds of the people of Gaza. UNICEF said
the Israeli offensive has had a “catastrophic and tragic impact” on
children in Gaza; about 373,000 children had traumatic experiences and
needed psychological help. The U.N. Relief and Works Agency has warned
about a public health catastrophe.
“The massive death and destruction in Gaza have shocked and shamed the world,” U.N. Secretary General Ban Ki-moon said last year.
“Nothing symbolized more the horror that was unleashed on the people of
Gaza than the repeated shelling of U.N. facilities harboring civilians
who had been explicitly told to seek a safe haven there. These attacks
were outrageous, unacceptable and unjustifiable.”
Holding Israel accountable
Ban and former U.N. High Commissioner for Human Rights
Navi Pillay have called for accountability and justice. And there is a
growing body of evidence compiled by U.N. agencies and other
nongovernmental organizations that strongly suggest Israel’s crimes in
Gaza fall under the ICC’s jurisdiction.
In a report released on Wednesday, London-based advocacy group Amnesty International said, “Israeli forces carried out war crimes”
during its offensive in Gaza’s Rafah. “There is strong evidence that
Israeli forces committed war crimes in their relentless and massive
bombardment of residential areas of Rafah in order to foil the capture
of Lt. Hadar Goldin, displaying a shocking disregard for civilian
lives,” said Philip Luther, the director of the Middle East and North
Africa program at Amnesty International. “They carried out a series of
disproportionate or otherwise indiscriminate attacks, which they have
completely failed to investigate independently.”
The National Lawyers Guild Palestine subcommittee recently sent its revised submission
to Bensouda, based on new reports and materials highlighting why
Israeli’s self-defense claims are false and are not supported by fact or
any law. Another report by
Breaking the Silence, an advocacy group made up of current and former
Israeli soldiers, includes dozens of testimonies that show the Israeli
military did not meet its obligations to protect civilians in wartime. A
similar report by the U.N. Independent Commission of Inquiry in Gaza
also contains evidence of possible war crimes
and concludes that the mass destruction and killing inflicted by
Israeli forces “may have constituted military tactics reflective of a
broader policy, approved at least tacitly by decision-makers at the
highest levels of the government of Israel.”
To be clear, Israel is not the only liable party. Any
investigation into war crimes and crimes against humanity committed by
Israeli officials should also look into whether U.S. officials aided and
abetted these crimes. The U.S. Congress, Presidents George W. Bush and
Barack Obama and key members of their administrations — who provided
financial assistance, weapons and other military support to Israel —
were all aiders and abettors of Israel’s crimes in the Gaza Strip. For
example, on July 20, 2014, in the midst of its offensive in Gaza,
Israel, apparently running short on military supplies, requested
additional ammunition, including 140-mm tank rounds and 40-mm
illumination grenades from the United States. Three days later, the U.S.
Defense Department authorized the transfer of munitions stored in
Israel to the Israeli authorities. In early August, Congress passed an
appropriation of $225 million for Israel’s Iron Dome missile defense
system without a debate; Obama immediately signed the bill.
A full criminal investigation by the ICC would send a
clear message to all involved either in committing or in aiding and
abetting Israel’s egregious crimes against Palestinian civilians and
civilian infrastructure that they could be held accountable for their
involvement. This could help end the continuing breaches of
international law and the impunity that has underpinned Israel’s
ever-intensifying aggression, which has caused and continues to cause
extreme suffering to Palestinians. A full probe by the ICC prosecutor
into Israel’s actions and the role of its American enablers would be a
first step toward redeeming the court’s tainted reputation.
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