Palestinians Must Not Waste Opportunity to Pursue Israel at the ICC

First published by Inside Arabia on 17/2/2021

Palestinians and their supporters greeted the ICC Pre-trial Chamber’s recent decision that Palestine is considered a state and that the Court has jurisdiction to investigate alleged Israeli crimes with a mixture of relief and joy. However, past legal wins were wasted by the Palestinian leadership. The question now is, will they make the most of this significant win?

Palestinians Must Not Waste Opportunity to Pursue Israel at the ICCIn this July 16, 2014 file photo, Palestinian relatives of four boys from the same family grieve during their funeral in Gaza City. Many Palestinians welcomed the ICC’s ruling on Feb. 6, 2021 that it can investigate Israeli war crimes on the occupied Palestinian territories. (AP Photo/Khalil Hamra, File)

The International Criminal Court’s (ICC) Pre-trial Chamber issued what many see as a landmark decision on February 5 regarding the status of Palestine in relation to the Rome Statutes and the jurisdiction of the Court in relation to investigating alleged crimes in Palestine.

The chamber found by a majority of two judges to one that: Palestine is a State Party to the Statute; that, as a consequence, Palestine qualifies as “[t]he State on the territory of which the conduct in question occurred” for the purposes of article 12(2)(a) of the Statute; and that the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.

The ICC’s prosecutor had been deliberating on these issues since 2015, when Palestine applied to be a member of the Court. This would determine whether it could submit claims against Israeli individuals for their role in a number of matters, especially alleged war crimes in the 2014 war on Gaza and the illegal settlements in the West Bank and East Jerusalem.

The decision of the Pre-trial Chamber was greeted with elation and approval by Palestinians and their supporters, while Israel condemned the decision and its allies refused to accept the Chamber’s ruling.

Palestinian Prime Minister Mohammad Shtayyeh hailed the decision as “a victory of justice, humanity and the values of truth, and freedom. It is a message to crime perpetrators that their crimes will not be subject to the statute of limitations and that they will not go unpunished.”

“The [Palestinian] government continues to document the ongoing Israeli crimes against our people, particularly the killings, house demolitions, land confiscations, and settlement expansions that undermine the two-state solution and violate international law and related resolutions, especially UNSC Resolution 2334, [which ‘Condemned all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967’],” added the Prime Minister.

Israeli Prime Minister Benjamin Netanyahu, in a fiery video, not only rejected the decision but outrageously labelled it as “pure anti-Semitism.”

Israeli Prime Minister Benjamin Netanyahu, in a fiery video, not only rejected the decision but outrageously labelled it as “pure anti-Semitism” and promised that Israel would “fight this perversion of justice with all [its] might!”

Yet, if Israel did not believe any of its political or military leaders have committed war crimes against the Palestinians, then it would welcome an investigation to exonerate them. The reality though is that Israel believes it can act above the law, and the support of the US in particular has ensured that it does not face any form of accountability.

Nevertheless, Israel’s reaction was not surprising. And anyone hoping that with the Trump administration gone – which was notably hostile towards the ICC – the new Biden administration would turn a new leaf, join the ICC, and accept this ruling to help deter the perpetuation of war crimes, would be mistaken. Unfortunately, and true to form, the new US administration decided to shield Israel from accountability.

Washington has not lifted the sanctions imposed on the ICC by Trump. Its statement released by Ned Price, the State Department Spokesperson, opened on a positive note: “We share the goals of the ICC and promoting accountability for the worst crimes known to humanity.” However, Price made an exception for Israeli officials expressing “serious concerns” over this ICC effort to exercise jurisdiction over Israeli personnel.

Other countries’ unwillingness to accept the decision, which came after years of careful deliberations by the Court, was telling as well.

Germany also denounced the decision. Heiko Maas, the German Foreign Minister, said “the court has no jurisdiction because of the absence of the element of Palestinian statehood required by international law.”

The Foreign Minister of Hungary, Péter Szijjártó, backed Israel’s rejection of the ICC ruling, stating: “Similar to Israel, Hungary does not agree with this decision. During the legal procedure we already signalled that, according to our position, Palestine does not have criminal jurisdiction over Israeli citizens.”

“We have always supported Israel’s right to defend itself,” he added. “We believe that peace in the region can only be achieved through negotiations based on mutual respect.” Szijjártó’s statement, and those similar to it, imply that Israel can take whatever measures it judges necessary to defend itself – even if they fit the description of war crimes – and should not come under any scrutiny.

Israel is clearly worried by the ICC’s decision, to the extent that it has drawn up a secret list of intelligence and military personnel who could be potential suspects the ICC might call.

Israel is clearly worried by the ICC’s decision, to the extent that it has drawn up a secret list of intelligence and military personnel who could be potential suspects the ICC might call during future investigation and who may be arrested if they travel to any member state of the Court. Shamefully though, sources reportedly confirmed that Israel-friendly states would give prior warning to possible suspects to avoid having to arrest them.

Still, despite the pushback from Israel and other countries, the ICC ruling is a major step in the right direction to bring Israeli officials, who have enjoyed total impunity in the past, closer to accountability. The Palestinians have been exploring possible avenues to achieve this for a long time, dating back to the Sabra and Shatila massacres of 1982, which former Israeli Prime Minister Ariel Sharon was believed to have orchestrated.

he question that arises now is will the Palestinian leadership grasp this opportunity to bring Israel to account or will it be wasted as previous opportunities were?

The Palestinian leadership has often been accused of “never missing an opportunity to miss an opportunity.” This generally relates to their refusal to accept “peace deals” that did not meet their and the Palestinian people’s minimum demands for a just peace agreement. Thus, they certainly could not have accepted the terms of earlier accords with the support of the Palestinian people. However, the Palestinian leadership has missed opportunities in the past to bring Israel to account for its crimes against the Palestinians and its clear breaches of intentional law.

The Palestinian leadership has missed opportunities in the past to bring Israel to account for its crimes against the Palestinians and its clear breaches of intentional law.

The first time this occurred was the 2004 International Court of Justice Advisory Opinion on the Separation Barrier, which it found to be illegal and that its construction “would be tantamount to de facto annexation,” as it explained that the barrier could create a potentially permanent “fait accompli” on the ground. Yet, to this day, the Palestinian leadership has not capitalized on this hard-won and important judgement.

The other occasion the Palestinian leadership failed to pursue Israel for its crimes was the Goldstone report, which was published after Israel’s devastating and cruel war on Gaza in 2008-09. The report concluded that both the Israeli and Palestinian armed groups had potentially committed war crimes. This was seen as an opportunity for the Palestinian leadership to refer Israel to the UN Security Council.

However, Palestinian President Mahmoud Abbas cut a deal with Washington not to do so, prompting then-US National Security Adviser Jim Jones to tell the late Palestinian negotiator Saeb Erekat: “Thank you for what you did a couple of weeks ago [on Goldstone]; it was very courageous.”

The track record of the Palestinian Authority (PA) and its President, who has presided over these missed opportunities to bring Israel to account, cast doubt over whether the PA will pursue Israeli officials at the ICC with vigor or whether they will “cut a deal” with the Biden administration in the misplaced hope that they can return to futile “negotiations” with Israel.

The Palestinian leadership owes it to the victims of Israel’s crimes and expansionist policy to go all out to bring Israeli officials to justice. Anything less than that would be an unforgivable betrayal of the Palestinian people yet again.

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