As is often said, the first casualty of war is the truth. Disinformation, disinformation and propaganda are commonplace in the context of armed conflict, as warring parties and their allies attempt to obtain narratives conducive to their war aims. No contemporary conflict has been as full of untruths as the Middle East conflict, a reality that extends to ongoing efforts to combat mass atrocities in Israel and Palestine. In what follows, I refute some popular but false claims about the work of the International Criminal Court (ICC) and its investigation into the situation in Palestine.
First, there is the question of jurisdiction. Israel, the United States and some other states have questioned the ICC’s jurisdiction over Israeli officials. According to them, the Court cannot exercise jurisdiction over Israeli citizens because Israel has never joined the ICC. Others, like former Canadian Justice Minister Irwin Cotler, a staunch defender of Israel and opponent of accountability for atrocities against Palestinians, have tried to argue that the ICC has jurisdiction over Palestinian citizens, but not on Israeli citizens. These claims are false.
The ICC has jurisdiction over both Israeli and Palestinian officials. In 2015, Palestine became a member of the ICC. The same year, the Court opened a preliminary examination of the situation in Palestine. In 2021, judges determined that the ICC prosecutor therefore had jurisdiction over Gaza and the West Bank, including East Jerusalem, and a formal investigation into the situation in Palestine ensued.
Because Palestine is a state before the ICC (and a state recognized by 149 of the 193 UN member states), the Court has jurisdiction to investigate any Palestinian citizen, regardless of where their atrocities are carried out. The Court also has jurisdiction over all atrocities committed on Palestinian territory, regardless of the nationality of the perpetrators. Accordingly, the ICC has jurisdiction over Hamas and crimes committed by its fighters in Israel, even though Israel is not a member state of the ICC, and the Court has jurisdiction over all Israeli perpetrators of mass atrocities committed in Gaza and the West Bank. Suggestions to the contrary are not only incorrect, but represent an attempt to interfere with one of the only means of establishing accountability in a situation filled with credible allegations of war crimes, crimes against humanity, ethnic cleansing and genocide.
Second, Israeli leaders have repeatedly insisted that the ICC is somehow politically opposed to Israel. This is not the case. The Court was established not to investigate States, but individuals, for their responsibility for international crimes – war crimes, crimes against humanity, genocide and the crime of aggression. Targeting Benjamin Netanyahu for prosecution is a judgment against Bibi, not the State of Israel.
However, could the ICC be biased against Israel? Again, no. The ICC has had numerous opportunities to investigate and prosecute Israeli behavior, but has refused to do so. Had the Court been in any way biased against Israel, it would surely have used the opportunity to target Israeli officials during the attacks on the Mavi Marmara and the Gaza flotilla in 2010. Yet it refused to do so. The ICC has also refused to act on the litany of alleged international crimes committed in 2014, 2018, 2021, etc. On the contrary, the Court has shown a certain bias towards Palestinian victims and survivors by slowing down its investigation and repeatedly refusing to issue arrest warrants against the perpetrators of atrocities against Palestinian civilians. .
Third, some suggest that the ICC should not investigate Israeli officials because Israel has a strong and independent judiciary. The suggestion here is that if Israel has a strong judicial system, the ICC should back off. But this fundamentally ignores the fundamental rules and laws that govern the Court’s operations.
The ICC is based on the principle of complementarity. In short, this means that if the ICC issues arrest warrants for alleged perpetrators, but a relevant state (a) is actively investigating and prosecuting the same perpetrator for the same conduct as the ICC, and (b) is able and willing to do so in an authentic manner (rather than conducting fictitious investigations to protect perpetrators), then any relevant ICC case can be challenged and found inadmissible before the Court.
Israel has never investigated or prosecuted its leaders for war crimes committed in Gaza or the West Bank. Instead, the Israel Defense Forces typically advance claims that any violation of international humanitarian law was a fabrication or error – or, worse, an indication of such “anti-Israeli” animism. The dominant culture is one of impunity, particularly for senior military and government officials.
The bottom line is that if the ICC were to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu or Defense Minister Yoav Gallant, accused of the war crime of deliberately starving Palestinians, Israel would fail the first test. It is not investigating either senior official for war crimes. He will not even investigate his ministers who openly incite genocide and the annexation and ethnic cleansing of Gaza. The quality of the Israeli justice system does not matter if it ultimately remains inactive. A State can have the Cadillac of justice systems and yet, if it refuses to investigate and prosecute the same people for the same conduct covered by the ICC, it fails the complementarity test and the cases are admissible before the Court.
Finally, some insist that ICC intervention will undermine the chances of peace. But the question arises: what peace? Neither Israel nor Hamas has shown any credible interest in Palestine coexisting in peace and security with Israel. Even Israel’s closest allies have admitted that the country has no interest in a two-state solution. Canadian Prime Minister Justin Trudeau, for example, said that “the Israeli government led by Prime Minister Netanyahu has unacceptably closed the door to any path leading to a two-state solution.” The proof is in the expansion of settlements, the forced expulsion of Palestinians from their homes and lands, and the continuing allegations of apartheid which were given credence by the International Court of Justice in its ruling on the legal consequences of the illegal occupation of the Palestinian territories by Israel. This year.
There are legitimate concerns about the impact of ICC justice on peace negotiations and processes. But these concerns must be seen in context, and if peace is not offered, then it becomes implausible to claim that justice can undermine it. This is especially true in a situation like the long-standing conflict between Israel and Palestine, where peace has had dozens of chances, but accountability has never been respected. For all victims and survivors, in Israel and Palestine, it is long past time to see beyond the fog of accountability efforts and for states to support the ICC – not because it is perfect (far from there), but because it offers a minimum of guarantees. of justice and accountability for Israeli and Palestinian victims who have suffered for too long.
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