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The ICC and Israel: A time of reckoning?

Feb 09,2021 - Last updated at Feb 09,2021

The historic ruling last Friday by judges of the International Criminal Court (ICC) that the court has jurisdiction over Palestinian territories, the West bank, Gaza Strip and East Jerusalem, thus paving the way for a much delayed probe into war crimes committed by Israeli army during the 2014 Gaza invasion, the unlawful killing of Palestinian civilian protesters along the Gaza-Israel borders during the 2018 “Great March of Return” as well as Hamas’ rocket attacks on Israeli civilians. The probe will also cover Israel’s illegal settlement building in the occupied territories.

The ruling is a landmark event in the decades-long struggle by Palestinians for justice as they battled for their rights under Israeli occupation since 1967. If carried through, the outcome of the probe could prove disastrous for Israel, its army and leading political and security officials. It would be the first time that Israel would be held accountable for its illegal policies in the occupied territories. But what is more important is that beyond proving culpability, the ICC would be in a position to issue warrants for suspected war criminals; thus obliging signatory states to arrest Israeli officials on its soil.

The ruling was based on relevant UN resolutions and was made upon the request of the Palestinian Authority (PA), which submitted a request for an ICC investigation in May 2018. The PA signed the Rome Statute of the ICC in 2014 and on 1 April 2015 Palestine officially became the 123rd member of the court. Israel never ratified its signature and thus is not a member.

The ICC came under pressure during the Trump administration and last year it imposed sanctions on the courts’ top officials including chief prosecutor Fatou Bensouda. In December 2019, she said that there was sufficient evidence to open a full investigation into possible war crimes committed in Palestine. Palestinian officials believe that Trump’s departure may have opened the way for the court to make its latest ruling despite the immediate US opposition.

As expected Israeli Prime Minister Benyamin Netanyahu, whose corruption trial resumed on Monday, was quick to attack the ICC’s decision describing it as “pure anti-Semitism” and allegations of war crimes as “fake news”.  Israeli media reported that the Israeli foreign ministry has asked its diplomats all over the world to exert pressure on foreign governments to oppose an international inquiry.

Israel, as well as a number of Western countries and one dissenting ICC judge, has argued that Palestine is not a sovereign state and therefore the ICC has no jurisdiction over Palestinian territories. Friday’s ruling has put an end to that argument, for now. What the ruling also means is to negate all of Trump’s unilateral moves in the past four years with regard to recognising Jerusalem as Israel’s united capital to approving annexation of some parts of the West Bank. Going even further, the decision effectively recognises a “Palestinian state”, and delineates its borders along the 1967 lines.

If the probe does take place, Israel will do its utmost to prevent it; going as far as banning ICC officials from visiting the occupied territories, there will be a mountain of evidence to back Palestinian claims including videos, testimonials, human rights reports and documents. A group of former Israeli soldiers belonging to an organisation called “Breaking the Silence” are also willing to testify on the Israeli force’s controversial rules of engagement. Noting that such a process will take months if not years, the pressure on Israel could become a game changer.

Israel will have a month to respond once Bensouda, whose term ends in June and her replacement will be announced soon, makes a formal announcement of her intent to launch an investigation. There is no doubt that the chief prosecutor will come under tremendous pressure in the coming days and weeks to postpone her decision; at least until her successor takes over.

Regardless of what happens next, the ruling in itself is a major breakthrough for the Palestinians. Israel has defied dozens of UN resolutions on its occupation of Palestinian territories and its illegal building of settlements. It has ignored countless human rights reports on its extrajudicial killing of Palestinians, house demolitions, land expropriation and the illegal displacement of civilians. In fact, it has never been held accountable for its actions; relying on the blind bipartisan support of US Congress and successive administrations.

The probe will refer to UN resolutions and international conventions in its deliberations putting Israel and its actions under the limelight and rekindling international sympathy for the plight of Palestinians and giving strength to anti-occupation movements such as BDS. The long-term damage to Israel’s image will be grave as the probe drags on and even if it reaches a dead-end due to external pressure.

The recent ruling should give much needed momentum to efforts to revive the peace process and push for a conclusion to decades of conflict. Even as the US says it opposes the ICC ruling it should give it an excuse to intervene in a bid to create a foundation for a new drive to deliver a two-state solution; one that President Joe Biden affirmed his commitment to.


Osama Al Sharif is a journalist and political commentator based in Amman

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