As is often said, the first person to die in battle is true. Misinformation, disinformation, and propaganda are commonplace in the context of armed conflict, as warring parties and their allies attempt to secure a narrative that aligns with their wartime goals. No current conflict is as riddled with lies as the conflict in the Middle East, a fact that extends to ongoing efforts to address the atrocities committed in Israel and Palestine. Next, I debunk popular but false allegations about the work of the International Criminal Court (ICC) and its investigation into the Palestinian situation.
First, there is the issue of management. Israel, the United States, and several other states have questioned the ICC’s jurisdiction over Israeli officials. According to them, the Court cannot exercise jurisdiction over Israeli citizens because Israel has never joined the ICC. Others, such as Canadian Justice Minister Irwin Cotler, who is a staunch defender of Israel and against accountability for atrocities committed against Palestinians, have tried to argue that the ICC has jurisdiction over Palestinian citizens, but not Israelis. These claims are false.
The ICC has jurisdiction over both Israeli officials and Palestinian leaders. In 2015, Palestine became a member of the ICC. In the same year, the Court opened the first inquiry into the situation in Palestine. In 2021, the judges decided that the ICC Prosecutor has jurisdiction over Gaza and the West Bank, including East Jerusalem and the official investigation into the Palestinian situation.
Because Palestine is a state before the ICC (and is recognized by 149 of the 193 UN member states), the Court has the authority to investigate any Palestinian citizen, regardless of where their atrocities were committed. The Court also has jurisdiction over any atrocities committed in the Palestinian Territory, regardless of the nationality of the perpetrators. As a result, the ICC has jurisdiction over Hamas and the crimes committed by its fighters in Israel even though Israel is not a member state of the ICC, and the Court has jurisdiction over any Israeli perpetrators of atrocities committed in Gaza and the West Bank. The counter-proposals are not only wrong but represent attempts to disrupt one of the only forms of accountability in a situation full of credible allegations of war crimes, crimes against humanity, ethnic cleansing and genocide.
Second, Israeli leaders have repeatedly emphasized that the ICC is somehow anti-Israel. That’s not the case. The Court was created to investigate not states, but individuals, for their responsibility for international crimes – war crimes, crimes against humanity, genocide and crimes of violence. Targeting Benjamin Netanyahu for prosecution is Bibi’s decision, not the Israeli Government’s.
However, can the ICC side with Israel? Again, no. The ICC has had many opportunities to investigate and prosecute Israel’s conduct, but has refused to do so. If the Court was somehow biased towards Israel, it would have taken the opportunity to point out Israeli officials about the attack on the Mavi Marmara and the Gaza Flotilla in 2010. However, it refused to do so. The ICC has also refused to take action on the list of international crimes committed in 2014, 2018, 2021, and so on. If anything, the Court has shown some bias towards Palestinian victims and survivors by the slowness of its investigations and its repeated refusal to issue arrest warrants for perpetrators of violence against the Palestinian people.
Third, some suggest that the ICC should not investigate Israeli officials because Israel has strong and independent institutions. The suggestion here is that if Israel has a strong judicial system, the ICC should withdraw. But this basically does not understand the basic rules and regulations that govern the operation of the Court.
The ICC is based on the principle of complementarity. In short, that means that if the ICC issues warrants against suspects, but the relevant state (a) investigates and prosecutes the same perpetrator in the same manner as the ICC, and (b) is able and willing to do so in an honest manner (as opposed to holding a sham investigation to protect the perpetrators of evil), then any relevant ICC cases can be challenged and deemed inadmissible in the Court.
Israel has never investigated and prosecuted its leaders for war crimes committed in Gaza or the West Bank. Instead, the Israel Defense Forces often come up with claims that any violations of international humanitarian law were lies or mistakes – or, worse, indicative of that kind of ‘anti-Israel’. The prevailing culture is one of impunity, especially for senior officials in the military and government.
What appears is that if the ICC were to issue a warrant for the arrest of Israeli Prime Minister Benjamin Netanyahu or Defense Minister Yoav Gallant for the war crimes of deliberately starving the Palestinians, Israel will fail for the first time. It is not investigating any high-ranking person for war crimes. It will no longer investigate its cabinet ministers for publicly advocating the killing of people and the occupation and ethnic cleansing of Gaza. The quality of the judgment in Israel is irrelevant if it is ultimately ineffective. A state can have a Cadillac of justice systems but still, if it refuses to investigate and prosecute the same people for the same behavior directed by the ICC, it fails the compatibility test, and the cases are accepted by the Court.
Finally, there are those who insist that the intervention of the ICC will destroy the chances of peace. But the question arises: what is peace? Neither Israel nor Hamas shows a credible interest in Palestine existing in peace and security with Israel. Even Israel’s closest allies have acknowledged that the country is not interested in a Two State Solution. Canadian Prime Minister Justin Trudeau, for example, said that “the Israeli government under Prime Minister Netanyahu has unacceptably closed the door on any path to a two-state solution.” The evidence lies in the expansion of settlements, the forced eviction of Palestinians from homes and fields, and the ongoing allegations of discrimination that were given credence by the International Court of Justice in its ruling on the legal consequences of Israel’s illegal occupation of Palestinian territories in the past. this year.
There are active concerns about how ICC justice affects peace negotiations and peace processes. But such concerns need to be seen in context, and if no peace is offered, then it is difficult to argue that justice can be undermined. This is especially true in a situation like the long-standing conflict between Israel and Palestine, where peace has been given countless opportunities, but accountability has never materialized. For all victims and survivors, in Israel and Palestine, it is long past time to see past the fog of accountability efforts, and for states to support the ICC – not because it is perfect (far from it), but because it provides a modicum. of justice and accountability for long-suffering Israeli and Palestinian victims.
Further Studies in E-International Relations
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