Aerial view of Al-Shejaiya’s destruction after Operation Protective Edge by Media Town
By Sean Nevins
BEIRUT — Israel is pulling out all the stops to prevent an examination by the International Criminal Court (ICC) at The Hague in the Netherlands into alleged war crimes committed during its offensive on Gaza last summer that left over 2,300 dead and over 500,000 people homeless.
In an interview with Israel Radio last month, Foreign Minister Avigdor Lieberman said, “We will demand of our friends in Canada, in Australia and in Germany simply to stop funding it [the court].”
Since Jan. 16, when Fatou Bensouda, the chief prosecutor of the ICC, opened a preliminary examination into the situation in Palestine, Israel has forced the resignation of the head of the United Nations inquiry into Operation Protective Edge and called on members of the tribunal to cut funding to the court.
“So long as any institution for the prosecution of war crimes exists, the Israeli state knows that under any system of justice it’s their leaders and officials that are going to be facing prosecution for their ongoing and systematic war crimes against the Palestinian people,” said Charlotte Kates, the coordinator for the National Lawyers Guild International Committee.
“So, of course they want to see the ICC defunded,” she told MintPress.
Human Rights Watch investigated three attacks on schools in Gaza that occurred during Operation Protective Edge. The report concluded that two of the three “did not appear to target a military objective or were otherwise unlawfully indiscriminate,” while the third was “unlawfully disproportionate if not otherwise unlawfully indiscriminate.”
“Unlawful attacks carried out willfully – that is, deliberately or recklessly – are war crimes,” the HRW report asserted.
Likewise, an Amnesty International investigation into Israel’s destruction of buildings in Gaza determined that these attacks “are examples of what appears to have been deliberate destruction and targeting of civilian buildings and property on a large scale, carried out without military necessity.”
Kates told MintPress that even though the system by which the court prosecutes entities is flawed, the very fact that such a body exists that calls for the international prosecution of war crimes is always going to be something that the Israeli state looks at with “fear, anger, and hatred.”
Kates explained that both the United States and Israel want to remain outside the jurisdiction of the international legal body.
“Unfortunately, what that’s meant is that rather than being a court that actually been used to bring to justice the biggest war criminals and violators of human rights… it’s been used almost exclusively against African leaders,” Kates said. “So what we see is that even the International Criminal Court is used to perpetuate colonial injustice.”
Fighting the ICC
With the war as a backdrop, the government of Palestine acceded to the ICC’s founding charter, the Rome Statute, on Jan. 2. This allows the court jurisdiction over the West Bank, including East Jerusalem and Gaza. It also allows Palestine to lodge a formal request for the court to investigate possible war crimes in its territory, which it did on Jan 1.
The court has since stated that it will open a preliminary examination over alleged crimes committed “in the occupied Palestinian territory… since June 13, 2014” with “full independence and impartiality.”
Israel has responded by calling on the 122 member states of the ICC to stop funding the court.
Israel’s Foreign Minister Avigdor Lieberman said last month that the ICC “represents no one. It is a political body.”
Leading backers of the ICC, including Germany, Britain and France, recently told Reuters that they would ignore Israel’s call to defund the institution.
The International Criminal Court
As the ICC is not part of the U.N., it is responsible for its own funding. It accepts contributions from states that have ratified its charter, and these contributions are based on a state’s population size and wealth. It also receives money from the U.N., which refers cases to the court from the U.N. Security Council. Additionally, the ICC can receive voluntary contributions from individuals, corporations, international organizations and governments. However, these contributions “are not intended to affect the independence of the Court.”
The ICC was created on an ad hoc basis in the early 1990s to address violence and injustices being committed in the former Yugoslavia and Rwanda. Prior to those trials, however, the International Law Commission, a U.N. body, had already put the wheels in motion for the creation of a permanent court.
After 60 member states ratified the Rome Statute, it entered into force on July 1, 2002, thus officially establishing the ICC. Both the U.S. and Israel have signed the treaty but never ratified it.
Israel issued a statement on June 30, 2002 declaring that it would not ratify the statute due to concerns that “the court will be subjected to political pressures and its impartiality will be compromised.”
Israel’s Ministry of Foreign Affairs specifically took issue with the fact that the court sees “the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies” as a war crime.
It further stated that it believes this part of the statute came under “pressure of Arab states,” and “is clearly intended to try to use the court to force the issue of Israeli settlements without the need for negotiation as agreed between the sides.”
Following an Israeli assault on the Palestinian refugee camp of Jenin in the West Bank in April 2002, Hans Koechler, president of the International Progress Organisation in Austria, criticized Israel for not ratifying the Rome Statute.
“A real chance for the prosecution of war crimes by the ICC may only exist if and when the State of Palestine has been recognised as a subject of international law and as a member of the United Nations and after this state will have ratified the Rome Statute,” Koechler said.
Israel and the ICC
Yet it is ironic that Israel has not ratified the Rome Statute and does not plan to do so, as the idea for the court originated in the wake of World War II in light of Nazi Germany’s war crimes against Jews and other groups.
“Much of the human rights framework that we use comes from the post-Nuremberg era and the international revulsion of the crimes of the Nazis, and the international unity that existed between Western colonial powers and the Soviet Union around the crimes of the Nazis, as well as growing decolonization movements in Africa, Asia and Latin America,” Kates told MintPress.
Kates is also the coordinator of Samidoun: Palestinian Prisoner Solidarity Network, a network of organizers and activists, based in North America, working to build solidarity with Palestinian prisoners around the world in their struggle for freedom.
“These things are the basis of the system of human rights we have,” Kates added.
However, Kates stated that she does not believe it is ironic that Israel is not supporting the ICC, as the creators of the state of Israel were not the ideological inheritors of the struggle and legacy of the victims of the Nazis.
“The lessons of that era aren’t anything that belong to a racist exclusionary settler-colonial state in Palestine,” she said. “I think it’s time that we stop associating and stop going along with Israeli propaganda that wants to claim that the Jewish and other victims of the Holocaust, who perished at the hands of the Nazis, and use them to justify their racism and colonization against Palestinians.”
Attacking the chair of the ICC
Last month, a letter of complaint was written by Israel’s Permanent Representative to the U.N. Eviatar Manor. The letter claimed that William A. Schabas, the head of the U.N.’s inquiry into Operation Protective Edge, faced a conflict of interest with regards to the investigation.
Manor provided information that Schabas had prepared a legal opinion for the Palestinian Liberation Organization and received $1,300 for his work. Israel has framed this to mean that Schabas is beholden to the PLO and so cannot conduct an examination into Palestine without bias.
Schabas resigned four days later, stating in his letter of resignation that he was resigning because of a procedure underway “to consider whether the Chair of the Commission [him] should be removed.” (Schabas has since been replaced by U.S. Judge Mary McGowan Davis.)
“Normally, a judicial or quasi-judicial body would resolve such a challenge before proceeding further. Yet the Commission cannot delay its work as it must produce its report in a matter of weeks,” he wrote. “Under the circumstances, and with great regret, I believe the important work of the Commission is best served if I resign with immediate effect.”
Referring to the PLO, Kates explained that Schabas, like most international law scholars, “has done work for organizations.”
“It’s really no surprise that somebody’s done work before on an issue related to Palestine,” she said. “However, it seems that the only time this leads to a charge of bias or someone winds up resigning is when the connection is to any kind of Palestinian organization because having a partnership with Israeli organization is seen simply as a part of politics.”
She told MintPress that one of the messages being sent with regards to Schabas is that associating oneself with Palestinians could be detrimental to one’s career.
“The reality is that regardless of this particular contract that William Schabas had, he’s a renowned scholar of international law,” she said, explaining that there is no doubt that he was going to study international law and analyze the situation as it existed.
“We can see what Israel did in Gaza. We can see the hundreds of thousands displaced. We can see the thousands killed. We know what happened, and that’s what this committee was tasked with investigating,” she said.
© 2015 MintPress News
Sean Nevins is a Washington DC based staff writer for MintPress focusing on foreign affairs, and the intersection of politics and policy. His work has appeared on Link TV, Inter Press Service, and The Real News Network. He has lived and reported from all over the world and holds a Master’s in Asian Studies (focus: Pakistan) from Lund University in Sweden.