THE HAGUE/JERUSALEM: The possibility of a war crimes investigation into the conduct of Israeli forces in Gaza, until recently unthinkable, has grown after the Palestinians said this week they wanted to become a party to the International Criminal Court.
The world’s permanent war crimes court in The Hague declined two years ago to investigate allegations against the Israeli military in 2008-2009, citing the uncertain legal status of the Palestinian Authority.
A lot has changed since then.
Fresh allegations of war crimes have flowed in recent weeks from fighting in Gaza, where Israel responded to a surge in rocket attacks by Hamas militants with air strikes and a ground incursion. The Palestinians this week unexpectedly said they are just one procedural step away from ICC membership.
The legal groundwork for such a move was laid in Nov 2012 when the 193-member UN. General Assembly overwhelmingly approved the de facto recognition of the sovereign state of Palestine by upgrading the Palestinian Authority’s observer status to “non-member state” from “entity.”
If the Palestinians were to sign the ICC’s founding treaty, the Rome Statute, the court would have jurisdiction over crimes committed in the Palestinian territories.
With Palestinian authorization, an ICC investigation could then examine events as far back as July 1, 2002, when the court opened with a mandate to try individuals for war crimes, crimes against humanity and genocide.
“If Palestine applies it will be admitted to the ICC,” John Dugard, international law professor and a former UN. Special Rapporteur for the Palestinian territories, told Reuters.
“The U.N. has spoken and it has recognized the state of Palestine and it is now for the ICC to admit Palestine. I cannot see how that can be resisted.”
Dugard said the Palestinians could then ask prosecutors to investigate alleged crimes in July and August in Gaza, but also the legality of Israeli West Bank settlements.
“The settlements are an ongoing crime and it is quite clear that the settlements constitute a war crime under the Rome Statute and that is what Israel is desperately worried about,” Dugan said.
Israel says the settlements are legal, as it captured the West Bank from Jordan, rather than a sovereign Palestine, in the 1967 Middle East war.
War crimes accusations accompanied Israel’s incursion into Gaza in July. Given the far higher toll of civilian deaths and destruction on the Palestinian side, a UN. inquiry was launched into human rights violations.
Israeli officials said force was used proportionately. But Israel’s closest ally, Washington, called the shelling of a UN.-run school “disgraceful”.
State Department spokeswoman Jen Psaki called for a probe into attacks on U.N. schools in densely populated Gaza. “While they have the right to defend themselves, there is more they can do” to prevent civilian deaths, she said.
Gaza officials say 1,874 Palestinians, most of them civilians, have been killed, while Israel counted 64 soldiers and three civilian deaths on its side.
Israeli officials said the hostilities were justified self defense against militant attacks and that all efforts have been made to avoid civilian deaths. Roughly 47 percent of those killed in Gaza were combatants, Israel said.
One Israeli official, who spoke on condition of anonymity because the legal strategy is confidential, said the Israeli government is planning a defense of the Gazaoperation and that counter-claims, including against the administration of President Mahmoud Abbas, could follow if the ICC launches a case.
“We are talking about terrorism involving officials, security personnel and others, from his administration, and emanating from areas under his control,” the official said.
Israel has taken great care to adhere to the laws of war and conducts internal investigations to ensure military personnel follow rules of conduct and morality, the official said.
Israeli forces destroyed or damaged some 3,000 homes in Gaza during this war, according to Palestinian estimates. The Israelis don’t dispute attacking homes, but Israeli jurists said they were pre-vetted and approved as legitimate military targets.
Richard Kemp, a retired British army colonel who formerly commanded forces in Afghanistan and Iraq and has been studying the Israeli military’s doctrine, believes the operations were conducted within the law.
“That does not mean that in the heat of the moment it would not be possible for an individual soldier or commander to act outside the laws of war, “ he said.
“That kind of adherence to the law does not preclude accidental killing of civilians. If it is done accidentally, if it is not a general theme or policy of negligence, then that is not a deliberate breach. Accidents happen in every army.”
The ICC, with 122 member countries, is a court of last resort, meaning that it intervenes only when a state is unable or unwilling to prosecute alleged crimes. The United States, China and Russia have notably not joined.
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