Could the Int’l Criminal Court brand Israel’s Netanyahu a War Criminal?

Ann Arbor (Informed Comment) – A prosecutor on the International Criminal Court, Fatou Bensouda, has opened an investigation into Israeli and Hamas war crimes, drawing a furious response from caretaker Israeli prime minister Binyamin Netanyahu.

Palestine filed the case in some large part because of the Trump administration’s brutal policies against the Palestinians, in which US AID and UNRWA funding was slashed, all of Jerusalem was given away to Israel, Netanyahu was encouraged to steal more Palestinian land faster, and the Israeli army was permitted simply to shoot down innocent unarmed demonstrators at the Gaza border with impunity.

Bensouda wrote at the ICC web site,

“Today, I announce that following a thorough, independent and objective assessment of all reliable information available to my Office, the preliminary examination into the Situation in Palestine has concluded with the determination that all the statutory criteria under the Rome Statute for the opening of an investigation have been met.

I am satisfied that there is a reasonable basis to proceed with an investigation into the situation in Palestine, pursuant to article 53(1) of the Statute. In brief, I am satisfied that (i) war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip (“Gaza”) (for specifics, see paras. 94-96); (ii) potential cases arising from the situation would be admissible; and (iii) there are no substantial reasons to believe that an investigation would not serve the interests of justice.

As there has been a referral from the State of Palestine, there is no requirement to seek Pre-Trial Chamber’s authorisation before proceeding to open an investigation, and I do not seek to do so.”

The International Criminal Court operates on a mandate from the Rome Statute, an international treaty instrument signed by most of the countries in the world that supplements the post-WW II Geneva Conventions. Unlike those conventions, the Rome Statute has a judicial arena in which claims of war crimes can be adjudicated. At Informed Comment, we have been watching this story slowly unfold over the past decade.

In 2012, the United Nations General Assembly recognized Palestine as an observer state at the UN, giving it the same status as the Vatican. I pointed out that most of Western Europe broke with the United States to support this recognition.

The Palestinians sought this status after Netanyahu sabotaged President Barack Obama’s attempt to achieve a negotiated settlement between the two sides, with George Mitchell as his envoy.

I wrote at that time (presciently if I do say so myself),

“In the law, “standing” is a crucial concept. Standing dictates who has a right to bring a law suit. You can’t proceed with a civil action unless the judge agrees that you have standing. Typically, you couldn’t sue on behalf of your cousin if you weren’t affected by the alleged tort. Up until now, the “entity” of the Palestine Authority did not have the standing to bring complaints against Israel to the UN. But Palestine as a UN observer will have such standing, and it could be significant.

Since almost no one else in the US will do so, let me direct readers to the Palestinians’ own position paper on the step. (One of the consistent features of colonialism and Orientalism is that the oppressed are deprived of a voice first of all by being made invisible in mass media and only ever represented by their enemies and detractors. It is very rare that we see an actual Palestinian with good English interviewed about Palestine on American television evening magazine shows.)

In the law, “standing” is a crucial concept. Standing dictates who has a right to bring a law suit. You can’t proceed with a civil action unless the judge agrees that you have standing. Typically, you couldn’t sue on behalf of your cousin if you weren’t affected by the alleged tort. Up until now, the “entity” of the Palestine Authority did not have the standing to bring complaints against Israel to the UN. But Palestine as a UN observer will have such standing, and it could be significant.

Since almost no one else in the US will do so, let me direct readers to the Palestinians’ own position paper on the step. (One of the consistent features of colonialism and Orientalism is that the oppressed are deprived of a voice first of all by being made invisible in mass media and only ever represented by their enemies and detractors. It is very rare that we see an actual Palestinian with good English interviewed about Palestine on American television evening magazine shows.)

As an “observer state,” Palestine can join UN bodies and can sign treaties. One it might like to sign is the Rome Statutes that created the International Criminal Court, a body that the United States and Israel, as hegemons, hate the way the devil hates holy water. Being a hegemon means never having to be tried for your war crimes (most of the government leaders prosecuted by the ICC so far have been from weak, despised African dictatorships).

As a member of the ICC, Palestine could then bring complaints against Israel for its annexation of Palestinian land and practice of Apartheid (which is recognized in the Rome Statutes as a war crime).

Whereas the US consistently vetoes all condemnations of Israel by the four other UN Security Council members, making sure that the Palestinians are always screwed over, it has no ability to stop the UN committees of the General Assembly, the UNGA itself, or the ICC from criticizing or sanctioning Israel. The US and Israeli tactic has been to prevent any official world body from ever producing a text condemning Israel’s treatment of the Palestinians, lest a body of international law grow up that would stand in the way of further Israeli colonization of the Palestinian West Bank, or of its creepy and illegal blockade of the civilians of the Gaza Strip. That tactic is about to be defeated.

As an “observer state,” Palestine can join UN bodies and can sign treaties. One it might like to sign is the Rome Statutes that created the International Criminal Court, a body that the United States and Israel, as hegemons, hate the way the devil hates holy water. Being a hegemon means never having to be tried for your war crimes (most of the government leaders prosecuted by the ICC so far have been from weak, despised African dictatorships).

As a member of the ICC, Palestine could then bring complaints against Israel for its annexation of Palestinian land and practice of Apartheid (which is recognized in the Rome Statute as a war crime).

Whereas the US consistently vetoes all condemnations of Israel by the four other UN Security Council members, making sure that the Palestinians are always screwed over, it has no ability to stop the UN committees of the General Assembly, the UNGA itself, or the ICC from criticizing or sanctioning Israel. The US and Israeli tactic has been to prevent any official world body from ever producing a text condemning Israel’s treatment of the Palestinians, lest a body of international law grow up that would stand in the way of further Israeli colonization of the Palestinian West Bank, or of its creepy and illegal blockade of the civilians of the Gaza Strip. That tactic is about to be defeated.”

In 2015, Palestine did join the International Criminal Court.

Here’s the trick. The Court is set up so that it is impossible for it to proceed in a case where neither of two disputing states are members. Israel, of course, never signed the Rome Statute, since it does not want to come under the jurisdiction of a human rights tribunal, since it is among the major violators of human rights in today’s world. (There are worse such violators, to be sure, but no other country is holding several million people in a condition of statelessness. Most disputes are over people having a nationality they do not want, not being forced to have no nationality).

But once Palestine joined the Court, it could bring a case against Israel. The Israeli government, faced with this possibility, threatened a) to cut off money to the Palestine Authority, b) to increase the rate at which it was colonizing the Palestinian West Bank, and c) to file counter-charges against Hamas. (Not sure how it could do that except by proxy since it shuns the Court). But then Netanyahu cut off money to the Palestine Authority, vastly increased the pace of colonization, and moved to annex 25% of the Palestinian West Bank. The PA is controlled by Fateh, a secular nationalist party that deeply dislikes Hamas in Gaza, so if this move produces problems for the latter, too bad.

Israel also coordinated with allies in the Trump administration like John Bolton to have them threaten to defund and destroy the ICC if it ever dared take up the Palestine issue. I guess Bolton isn’t in a position to do this, and I suspect that the ICC is important enough that the international community will fund it.

Then in spring 2018, Palestinians in Gaza began their weekly “Great March of Return” demonstrations, and Netanyahu ordered his officer corps simply to snipe at unarmed peaceful civilians at those rallies near the Israeli border, killing hundreds, maiming thousands, and wounding tens of thousands. Palestine leaders, I think, felt as though they would have no credibility left at all if they did not file a case against Israel for these egregious rules of engagement, which resemble the way Iran dealt with its recent bout of demonstrations. So the PA did file a case last year.

Bensouda is asking for a ruling on jurisdiction (can the ICC gather facts only from Palestinian territory, which is that of the plaintiff with standing, or also from Israel?) Since the crimes are being committed on Palestinian soil, I shouldn’t think the answer to that question is crucial to the investigation.

The ICC cannot sanction countries, only individuals. But Netanyahu, who has already been indicted for bribery and corruption by the Israeli attorney general, may now face the ignominy of being treated like an African dictator and branded a war criminal. I hope he likes the beach at Tel Aviv, because that may be the only one he gets to visit when he gets out of jail after his corruption sentence is served.

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Bonus Video added by Informed Comment:

International Criminal Court: “Situation in Palestine: Statement of the ICC Prosecutor, Fatou Bensouda”