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ICC should prosecute Israeli leaders for Gaza

Monday 9 February 2009, by Siddharth Varadarajan

With Palestine accepting the International Criminal Court’s jurisdiction, Israel should realise there is a price to pay for committing war crimes

Six years after it was established and a week after the first trial of an alleged war criminal Thomas Lubanga from DR Congo began with much fanfare, the International Criminal Court is confronting a serious existential question. Will it be a tribunal where only black and brown men are to be prosecuted? Or will criminals from the ‘civilised’ western world also be arraigned before it? The question is not a philosophical or merely moral one. Earlier this month, Pr esident Mahmoud Abbas of Palestine wrote to the ICC accepting its jurisdiction over crimes committed on his country’s territory. What this means is that Israel’s leaders and military commanders could ultimately be prosecuted for war crimes committed by the Israeli armed forces during their savage attack on the people of Gaza from December 27, 2008 to January 18, 2009.

Israel’s aggression led to the death of 1,300 Palestinians, most of them non-combatants. Children alone accounted for nearly a third of the victims. International human rights groups have accused Tel Aviv of committing serious war crimes by using weapons like white phosphorous in the midst of civilians, targeting civilian buildings and infrastructure, and preventing humanitarian aid and medical relief from reaching the victims. The U.N. High Commissioner for Human Rights, Navi Pillay, has called for an independent investigation and even President Barack Obama’s representative at the U.N., Susan Rice, said last month that Washington “expects Israel will meet its international obligations to investigate” these allegations.

In response to mounting pressure, Israel has said, laughably, that it will conduct an internal probe. But after getting free pass from the world all these years, Tel Aviv is feeling rattled. Israeli military commanders involved in Operation Cast Lead have been advised against travelling abroad, especially to Europe, where universal jurisdiction norms have already led to the opening of a criminal case in Spain stemming from an earlier war crime in the Gaza. Media censorship has also been invoked to ban journalists from naming Israeli officers involved in the war lest they be linked to specific war crimes and prosecuted abroad.

Apart from the piecemeal and politically difficult use of universal jurisdiction, there are two ways of holding Israeli leaders and commanders legally responsible for war crimes committed in Gaza. The U.N. General Assembly can establish an International Criminal Tribunal for Israel (ICTI) under powers granted to it by Article 22 of the U.N. Charter. The ICTI’s mandate would be more or less similar to the ad hoc courts established by the Security Council in the 1990s to deal with war crimes in Rwanda and the former Yugoslavia. Alternatively, an already established tribunal like the ICC could handle the matter.

Unlike the International Court of Justice (ICJ), which deals with disputes between states, the ICC is a court where individuals are brought to book. The court has jurisdiction over serious cases which occur on the territory of a state party or where the accused individual is a citizen of a state party. The UNSC also has the power to send a case to the ICC, something it did in 2005 when the Darfur matter was referred to prosecutors despite Sudan not accepting the court’s mandate.

But with Palestine now accepting the ICC’s jurisdiction, individuals from any country, including Israel, could be prosecuted for war crimes committed within Palestinian territory regardless of whether their own country has ratified the court’s statutes or not. Though 108 countries have joined the ICC, key states like Israel, the United States, India and China remain outside the tent. While this protects their citizens from potential arraignment at The Hague for serious violations of international humanitarian law committed on their own soil, there is no immunity if war crimes are committed on the territory of a state accepting ICC jurisdiction. It is on this basis that President Abbas has asked the court to open an investigation into Israeli crimes in Gaza during its recent aggression.

ICC prosecutor Luis Moreno-Ocampo has said an investigation will only be launched once the legal question of jurisdiction is settled. “It is the territorial state that has to make a reference to the court. They are making an argument that the Palestinian Authority is, in reality, that state,” he was quoted by The Times as saying. On their part, Israeli officials say that since Palestine is not a “state,” President Abbas’ submission is legally worthless.

The international law of recognition is complex but the existence of Palestine as a state and nation with the same rights of self-determination and sovereignty as other nations cannot be disputed. The State of Palestine was proclaimed on November 15, 1988 by the Palestine National Council in its ‘Algiers Declaration.’ Following this proclamation, dozens of countries, including India, China and Russia extended formal diplomatic recognition to it. And on December 15, 1988, the U.N. General Assembly voted to adopt Resolution 43/177 acknowledging the proclamation and granting the new state observer status. As Professor Francis A. Boyle has argued, the UNGA’s recognition of the new state of Palestine “is constitutive, definitive and universally determinative.” In December 2003, when the ICJ invited written submissions from states for its advisory opinion on the legality of the wall Israel was building in occupied Palestinian territory, it wrote to Palestine as well.

Of course, international recognition for Palestine did not then and does not now mean its state enjoys the attributes of independence. But the primary reason for this is that Palestine is under military occupation by Israel, an occupation that the U.N. and the world recognise to be illegal. Today, Palestine exists, its people and territory exist, and the capacity of its state to enter into international relations is attested to by the formal diplomatic relations more than 100 countries have established with it.

The 20th century is full of examples of states continuing to exist despite their territory being occupied. The Nazi conquest of Poland or France, for example, led to the establishment of governments-in-exile that were no more legitimate than what the Palestinian people, through their struggle for self-determination, gave rise to. Following the Oslo Accords, the Palestinian authority returned from exile to discharge its functions under conditions of occupation in the hope that a negotiated transition to an end to the Israeli occupation would be possible. But the fact of military occupation can never extinguish the rights of a people to statehood, a right recognised by the League of Nations for the Palestinians as far back as 1919.

Wilful flouting

As an occupying power, Israel has certain obligations under international law and international humanitarian law, obligations it has been wilfully flouting especially by seizing land for settling its own citizens. In 2005, it effected a withdrawal of its citizens and soldiers from Gaza while maintaining full and effective control over all entry and exit points. At the time, Tel Aviv unilaterally asserted it had “ended” its occupation of Gaza and would no longer be responsible for the well-being of its people as the occupying power. This cynical and astonishing claim was subsequently upheld in 2008 by the Israeli High Court of Justice in the Gabber case.

By withdrawing from Gaza, Israel sought to rid itself of its obligations as an occupying power under the Geneva Conventions and as a belligerent occupant under the 1907 Hague Convention. And now, by claiming that Palestine is “not a state,” it wants to escape liability from the one international instrument that can pin responsibility on its leaders for their wanton violations of the laws of war, namely the ICC.

Why should the Palestinians be denied the protection of an international court expressly set up to provide justice to those who have no other forum to turn to, especially when their internationally recognised authority voluntarily submits its territory to its jurisdiction? If occupation extinguishes a state’s right to international protection, this would make a mockery of international law and of the ICC’s raison d’etre. Tomorrow, if Ethiopia occupies Eritrea and commits war crimes, will the vanquished Eritrean national authority not have the right to assign jurisdiction to the ICC to investigate crimes committed by the occupying power? Even if there is still a dispute with Israel over the precise frontiers of the West Bank, Israel has itself officially and legally washed its hands of the Gaza Strip. There can be no dispute over the right of the Palestinian Authority to ask the ICC to investigate war crimes committed there.

The Palestinian referral will not establish a precedent for other aggrieved peoples to “refer” themselves to the ICC and undermine the sovereignty of states. There is, today, no country other than Palestine which claims to speak for the people of Gaza. The ICC must take up the investigation of Israeli war crimes there with utmost urgency. Its credibility is at stake.

If the prosecutor is unwilling to act, the UNSC should refer the case to him. The question President Obama needs to ask is this: If the court is competent to try Sudanese officials for Darfur, why shouldn’t it be asked to look at Israel’s actions in Gaza as well? Of course, the reality is that the U.S. will likely block any such attempt at the Security Council. Which is why the proposal for the General Assembly to set up an ICTI should also be energetically pushed by the international community.