NEWS & VIEWS

News Update

 

25 December 2021

 

Badlands: Israel's Prosecution and Impunity

 

On 21 December 2021 Israel’s Attorney General Office responded to a 22 August 2021 letter sent by Grotius – Center for International Law and Human Rights inquiring whether Israel intends to investigate alleged serious violations of international law as determined by the International Criminal Court’s Prosecutor. The inquiring letter related to three themes that had been identified by the International Criminal Court’s Prosecutor as producing alleged crimes that fall within the Court’s jurisdiction: Israel’s assault against Gaza (8 July – 26 August 2014); Israeli settlements built in occupied West Bank, including East Jerusalem since 13 June 2014; and the suppression of Right of Return Marches in Gaza since beginning in March 2018. The Office of the Attorney General (Deputy - International Law) wrote in the letter:

The State of Israel is Committed to the rule of law and to its obligations pursuant to Israeli and international law. Therefore, the Israeli legal system examines complaints and other received information, from any source, and investigates each incident that raises reasonable suspicion for violating these laws.

 

Without derogating from what has been noted above, it should be reminded that Israel is not party to the International Criminal Court’s Statute and is not obligated to cooperated with it, and its principled position regarding the Court’s alleged jurisdiction in relation to incidents detailed in your letter is known and has been published before, as noted in your letter.[1]  

 

Israel’s position demonstrates once again that the country is able but unwilling to investigate serious crimes that fall within the International Criminal Court’s jurisdiction which should accelerate the initiated investigative and prosecutorial procedures at the Court. Israel’s disregard to international legality obligates the Court to complete its investigation, introduce an indictment, and seek the appropriate arrest warrants according to articles 54 – 61 of the Court’s Statute that regulate the operation of the Office of the Prosecutor.[2] 

 

The International Criminal Court’s Prosecutor had announced on 20 December 2019 that its preliminary examination generated three themes that encompass alleged crimes committed by Israel’s representatives:

The Prosecution has conducted a preliminary examination into the situation of Palestine. After a thorough analysis, the Prosecutor is satisfied that there is a reasonable basis to initiate an investigation into the situation in Palestine pursuant to article 53(1) of the Statute.

 

On the basis of the available information, there is a reasonable basis to believe that war crimes were committed in the context of the 2014 hostilities in Gaza. In particular, there is a reasonable basis to believe that members of the Israel Defence Forces (“IDF”) committed the war crimes of: intentionally launching disproportionate attacks in relation to at least three incidents which the Office has focused on (article 8(2)(b)(iv)); wilful killing and wilfully causing serious injury to body or health (articles 8(2)(a)(i) and 8(2)(a)(iii), or article 8(2)(c)(i)); and intentionally directing an attack against objects or persons using the distinctive emblems of the Geneva Conventions (article 8(2)(b)(xxiv), or 8(2)(e)(ii)).

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In addition, there is a reasonable basis to believe that in the context of Israel’s occupation of the West Bank, including East Jerusalem, members of the Israeli authorities have committed war crimes under article 8(2)(b)(viii) in relation, inter alia, to the transfer of Israeli civilians into the West Bank since 13 June 2014. The Prosecution has further concluded that the potential case(s) that would likely arise from an investigation of these alleged crimes would be admissible pursuant to article 17(1)(a)-(d) of the Statute.

 

The Prosecution further considers that the scope of the situation could encompass an investigation into crimes allegedly committed in relation to the use by members of the IDF of non-lethal and lethal means against persons participating in demonstrations beginning in March 2018 near the border fence between the Gaza Strip and Israel, which reportedly resulted in the killing of over 200 individuals, including over 40 children, and the wounding of thousands of others.

 

The Prosecution has identified no substantial reasons to believe that an investigation into the situation would not be in the interests of justice. [3]

 

On 5 February 2021 the International Criminal Court’s Pre – Trial Chamber I established the Court’s jurisdiction over Israel’s conduct in the 1967 Palestinian Occupied Territories, including East Jerusalem.[4] On 3 March 2021 ICC’s Prosecutor decided to open an investigation regarding its preliminary examination.[5]

 

In the letter to the Israeli Attorney General of 22 August 2021, Grotius – Center for International Law and Human Rights underscored the ramifications of failing to conduct a genuine and thorough criminal investigation into alleged violations of crimes that fall within the International Criminal Court’s jurisdiction:

I should emphasize Israel’s tradition of ignoring international investigations carried out by United Nations instruments mandated to uphold human rights, in addition to the country’s position to negate the International Court of Justice’s jurisdiction regarding the construction of the separation wall. Failing to initiate a serious and comprehensive criminal investigation in relation to the issues noted above could accelerate the procedures that are already before the International Criminal Court.   

 

Israel’s Assault on Gaza: 8 July – 26 August 2014

With regard to Israeli military operation in Gaza between 6 July – 26 August 2014, Amnesty International found and concluded in November the same year that:

Israeli air strikes during Israel’s recent military operation in the Gaza Strip, Operation Protective Edge, targeted inhabited multi-storey family homes. Whole families, including many women and children, were killed or injured by these targeted strikes and, in addition, there was extensive destruction of civilian property. These attacks were carried out in the context of a 50-day conflict, from 8 July until 26 August, in which the scale of destruction, damage, death and injury to Palestinian civilians, homes and infrastructure was appalling. According to figures released by the United Nations, some 1,523 civilians, including 519 children, are among more than 2,192 Palestinians who died during the operation. 1 By the time of the ceasefire on 26 August there were approximately 110,000 internally displaced persons living in emergency shelter and with host families. The UN estimated that about 18,000 housing units were destroyed or rendered uninhabitable, leaving approximately 108,000 people homeless. A further 37,650 housing units were damaged.

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The […] attacks on inhabited homes during Operation Protective Edge, and the number of civilian casualties and scale of destruction and serious damage resulting from the attacks documented in this report, and other such attacks, are more than just a human tragedy. They raise difficult questions for the Israeli government and the army which they have so far failed to answer. The pattern of attacks suggest military tactics were adopted that are incongruent with the binding rules governing the conduct of hostilities in international humanitarian law. The fact that the Israeli military began carrying out aerial bombardment of inhabited homes in the first days of the conflict77 and that this tactic was used for the duration of the operation, as illustrated by the dates of the attacks in this report, seems to suggest that Israel’s political leadership endorsed this manner of conducting hostilities.[6]

 

John Dugard, who served as United Nations Special Rapporteur on Human Rights in the Occupied Palestinian Territories (2001 – 2007), elaborated on this military operation by the Israeli forces countering the dominant approach advanced by the American political apparatus. Dugard explained the unique nature of Israel’s illegal occupation, also in Gaza:

Israel claims that it is acting in self-defense in Gaza, thereby portraying itself as the victim in the present conflict. President Barack Obama and both houses of the U.S. Congress have endorsed this justification for the use of force. But is it an accurate assessment?

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Military or belligerent occupation is a status recognized by international law. According to the terms of the Fourth Geneva Convention of 1949 — to which Israel is a party — a state is allowed to occupy a territory acquired in armed conflict pending a peace settlement. But the occupation must be temporary, and the occupying power is obliged to balance its security needs with the welfare of the occupied people. Collective punishment is strictly prohibited.

 

The occupation of Gaza is now in its 47th year, and Israel is largely responsible for the failure to reach an agreement on a peaceful settlement. Moreover, Israel is in breach of many of the humanitarian provisions contained in the Fourth Geneva Convention as a result of the siege it has imposed on Gaza since 2007. In short, Gaza is not only an occupied territory; it is also an illegally occupied territory.

 

The present operation in Gaza — Operation Protective Edge — must therefore not be seen as an act of self-defence by a state subjected to acts of aggression by a foreign state or nonstate actor. Instead, it should be seen as the action of an occupying power aimed at maintaining its occupation — the illegal occupation of Gaza. Israel is not the victim. It is the occupying power that is using force to maintain its illegal occupation.[7]

 

Dugard’s successor as United Nations Special Rapporteur on Human Rights in the Occupied Palestinian Territories Richard Falk provided vivid description of the atrocities waged by the Israeli army against Gaza as well as an insightful portrayal of international criminal law’s geopolitics:

What has been happening in Gaza cannot usefully be described as “warfare”. The daily reports of atrocities situate this latest Israeli assault on common humanity within the domain of what the great Catholic thinker and poet, Thomas Merton, called “the unspeakable”. Its horror exceeds our capacity to render the events through language.

 

The events in Gaza are essentially a repetition of prior Israeli incursions with heavy sophisticated weaponry in which the people of Gaza are the helpless victims of Israeli firepower, with no place to hide, and increasingly without even such necessities of life as water and electricity, whose facilities have been targeted by Israel’s precision weaponry.

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As with earlier massive Israeli military operations carried out against the people of Gaza 2008-2009, and 2012, the defenceless Gazan population is again being cruelly victimised. If an adversary of the West was behaving as Israel has since July 8, it would be branded an aggressor whose leaders would likely be held accountable before the International Criminal Court (ICC) or some other tribunal with the authority to prosecute persons accused of international crimes which have distressed the US government and its allies.

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This contrast manifests the geopolitical logic of world order for all who have eyes that want to see “the real” as opposed to heeding the “reigning hegemonic myths”. It is this geopolitical logic that is shaping the application of international criminal law: accountability for enemies of the West, impunity for the West and its friends. Such double standards highlight the tensions between law and justice. There is currently no greater beneficiary of this deformed political culture of impunity than the political leadership and military command structure of Israel.

 

And yet there does exist an international criminal law and procedures for its application, and although so far successfully manipulated by the geopoliticians, the endgame of criminal accountability has yet to be played. Those who are victimised should not ignore its unrealised potential for justice, and the challenge posed to all who consider themselves “citizen pilgrims” – on a life journey of human solidarity and faith in a better future: Law from above, justice from below. This is the populist equation that can guide us towards thought, feelings, and actions on the “right side of history”.[8]

 

The Israeli command structure at the time was composed of Benjamin Netanyahu as Prime Minister; Moshe Yaalon as Minister of Defence; Benjamin Gantz as IDF’s Chief of the General Staff; and Sami Turjeman, headed IDF’s Southern Command. Yoram Cohen led the Israeli Security Agency (Shabak).

 

Israeli Settlements in the Occupied Palestinian Territories

It is difficult to dispute the illegality of Israeli settlements in the occupied Palestinian Territories, including in the West Bank and East Jerusalem. The International Court of Justice’s Advisory Opinion pertaining to the construction of a wall in occupied Palestinian Territories determined that “The Court concludes that the Israeli settlements in the Occupied Palestinian Territories (including East Jerusalem) have been established in breach of international law.”[9]

 

Michael Lynk, the UN Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967, called in July 2021 on the international community to designate the creation of Israeli settlements as a war crime under the Rome Statute of the International Criminal Court:

Lynk said the Israeli settlements violate the absolute prohibition against the transfer by an occupying power of parts of its civilian population into an occupied territory. The international community designated this practice as a war crime when it adopted the Rome Statute in 1998.

 

“For Israel, the settlements serve two related purposes. One is to guarantee that the occupied territory will remain under Israeli control in perpetuity. The second purpose is to ensure that there will never be a genuine Palestinian state,” Lynk told the Human Rights Council in Geneva.

 

“These are exactly the reasons why the international community agreed to prohibit the practice of settler implantation when it created the Fourth Geneva Convention in 1949 and the Rome Statute in 1998.”

 

He said the Israeli settlements were “the engine of Israel’s 54-year-old occupation, the longest in the modern world”. There are now close to 300 settlements in occupied East Jerusalem and the West Bank, with more than 680,000 Israeli settlers.

 

Lynk said that the illegality of the Israeli settlements is one of the most settled and uncontentious issues in modern international law and diplomacy. Their illegality has been confirmed by the United Nations Security Council, the General Assembly, the Human Rights Council, the International Court of Justice, the International Committee of the Red Cross, the High Contracting Parties to the Fourth Geneva Convention and by many international and regional human rights organizations.[10]

 

There is evidence that Israel has continued constructing settlements after 13 June 2014[11] which included a rare opposing position by Britain’s representative the Minister for Middle East and North Africa:

The United Kingdom issued a statement by Minister for the Middle East and North Africa James Cleverly that called on Israel to reverse the approval and said settlements "are illegal under international law and present an obstacle to peace and stability."[12]

 

The Israeli government has been aware of the illegality of forming settlements in the 1967 occupied Palestinian territories since shorty after their capture. Theodor Meron, legal adviser to Israel’s Ministry of Foreign Affairs wrote to the Israeli government on this issue:

The above question is very general and difficult to answer but I understand it in the context of what I have heard from Mr Adi Yafeh, that is to say, in relation to the possibility of Jewish settlement in the [West] Bank and the [Golan] Heights as well as the settlement of Arab refugees from Gaza in El-Arish or the [West] Bank. In this opinion, I will deal only with the first question, which, from a political and legal point of view, seems to me to be the most delicate. I am afraid there is in the world very great sensitivity to the whole question of Jewish settlement in the administered territories and any legal arguments that we shall try to find will not counteract the heavy international pressure that will be exerted upon us even by friendly countries which will base themselves on the Fourth Geneva Convention. These countries may claim that, while they expect for Israel to settle Arab refugees, Israel is busy settling the administered territories with its citizens.[13]

 

Israeli Prime Minister and Minister for Construction and Housing would be the primary perpetrators of establishing settlements in violation of the International Criminal Court’s Statue.

 

Suppression of Demonstrations in Gaza

In March 2018 Palestinians in Gaza launched mass demonstrations underscoring the persistence of the right of return of Palestinian refugees who were ethnically cleansed by Israeli forces commencing in the 1948 war. During this war, which lasted between 1947 and 1949 Israeli forces displaced more than two thirds of the Palestinian population in Palestine.

 

IDF responded with excessive force killing more than 180 persons and injuring many more.[14] A special investigative committee formed by the U.N. Human Rights Council found that the shooting by the Israeli forces was unjustified resulting in killing 189 persons and injuring more than 6000 individuals:

The Commission investigated all 189 fatalities and tracked more than 700 injuries caused by the Israeli security forces at the demonstration sites and during the demonstrations.

 

The Commission found that demonstrators who were hundreds of metres away from the Israeli forces and visibly engaged in civilian activities were intentionally shot. Journalists and health workers who were clearly marked as such were shot, as were children, women and persons with disabilities.

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The Commission found reasonable grounds to believe that the Israeli security forces killed and maimed Palestinian demonstrators who did not pose an imminent threat of death or serious injury to others when they were shot, and where there shooting did not thwart any such threat. Less lethal alternatives remained available and substantial defences were in place, rendering the use of lethal force neither necessary nor proportionate. The Commission therefore found reasonable grounds to believe that demonstrators were shot in violation of their right to life.

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The shooting by Israeli security forces of Palestinian demonstrators with high-velocity weaponry at distances under 200 meters resulted in killings and long-term, life-altering and life-threatening injuries, including paralysis and amputations. Although this was well known as early as April 2018, Israeli forces continued this practice throughout the period under review. Using such weaponry at short range, and justifying it by the need for accuracy at long range, indicates a disproportionate use of force.[15]

 

During the relevant period Gadi Eizenkot was IDF’s Chief of General Staff. Eyal Zamir (14 October 2015 – 6 June 2018) and Herzi Halevi (June 2018 – July 2021) led IDF’s Southern Command. Nadav Argaman headed Israel’s Security Agency (Shabak).

 

John Dugard, Russel Tribunal on Israel's Operation Protective Edge (8 July - 26 August 2014), September 2014

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[1] Israeli Attorney General Office (Deputy – International Law) letter to Grotius Center for International Law and Human Rights, 21 December 2021.

[2] On 24 July 2021 Grotius – Center for International Law and Human Rights wrote to the International Criminal Court’s Prosecutor requesting him to recuse himself given British Prime Minister Boris Johnson’s commitment to a group of conservative British MPs Friends of Israel that Israel shall not be prosecuted before the ICC. See: https://www.grotius.info/boris-johnson-in-the-hague

[3] Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination of the Situation in Palestine, and seeking a ruling on the scope of the Court’s territorial jurisdiction, 20 December 2019.

[4] ICC-01 /18, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, 5 February 2021, p.60.

[5] Statement of ICC Prosecutor, Fatou Bensouda, respecting an investigation of the Situation in Palestine, 3 March 2021. 

[6] Amnesty International, Families under the Rubble: Israeli Attacks on Inhabited Homes, 5 November 2014, pp.5, 42.

[7] John Dugard, “Debunking Israel’s self – defence argument”, Al-Jazeera America, 31 July 2014.   

[8] Richard Falk, “Massacre in Gaza”, Al-Jazeera, 22 July 2014.

[9] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I. C. J. Reports 2004, p. 136, 184, para.120. This opinion chronicles relevant U.N. Security Council and General assembly resolutions that assert the illegality of the Israeli settlements, including in East Jerusalem. See also U.N. Security Council resolution 2334 of 23 December 2016; U.N. General Assembly resolution 74/88 of 13 December 2019;  

[10] OHCHR, Occupied Palestinian Territory: Israeli settlements should be classified as war crimes, says UN expert, 9 July 2021. 

[11] For the purposes of this News Update, I will not discuss whether settlements constructed before 13 June 2014 and subsequent to the Court’s Statute entry into force on 1 July 2002 are also subject to investigation and prosecution by the International Criminal Court.

[12] Reuters, “12 European States Urge Israel to Stop Settlement Expansion”, Haaretz, 28 October 2021; Nir Hasson, “Israel Advances New Jerusalem Neighborhood for Jews Beyond Green Line”, Haaretz, 6 December 2021.  

[13] Theodor Meron, Settlement in the Administered Territories - Top Secret, 14 September 1967.

[14] In its letter to the Attorney General, Grotius – Center for International Law and Human Rights clarified that the Supreme Court’s ruling from 24 May 2018 on IDF’s rules of engagement against demonstrations in Gaza, in which it rejected the petition, does not form a genuine attempt to comprehensively investigate the alleged perpetrated crimes. The subject of the petition was IDF’s rules of engagement, not an investigation and prosecution of IDF’s purported illegal conduct. In addition, the Israeli Supreme Court practically accepted the version of the  IDF as to the nature, cause, and rational of these demonstrations paving the way for continued serious violations of international law. See HCJ 3003/18 Yesh Din – Volunteers for Human Rights et al v. IDF’s Chief of Staff et al, Judgement, 24 May 2018.

[15] HRC, Report of the detailed findings of the independent international Commission of inquiry on the protests in the Occupied Palestinian Territories, 18 March 2019, paras.691-699.