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In opening an investigation and subsequently prosecuting senior Israelis, the ICC will be sending a powerful message that Palestinians, like all other peoples, are worthy of justice, and that redress is not a gift but a right that must be unconditionally fulfilled.
The United States has launched a large-scale attack on the International Criminal Court (ICC), an international tribunal in The Hague, the Netherlands. On 10 September 2018, John Bolton gave his first major speech since he was appointed as the National Security Advisor of the United States a few months earlier. In the speech, Bolton described the ICC as “the Founders’ worst nightmare come to life: an elegant office building in a faraway country” – i.e. the Netherlands – “that determines the guilt or innocence of American citizens”.
Unsurprisingly, Bolton’s onslaught did not concern Americans alone. If criminal investigations of Israel go ahead, Bolton threatened to impose sanctions against the ICC. This is a major event in the development of the Israeli-Palestinian conflict. For decades, the US was widely viewed, whether it could live up to it or not, as an honest broker between the two feuding parties. With its recent moves, such as recognizing Jerusalem as the capital of Israel and defunding UNRWA, the UN agency for Palestinian refugees, the Trump administration has relinquished any claim to such a reputation. Instead, the US has presented itself as unabashedly pro-Israel.
This development will likely have dire consequences for the long-term strategy of the Palestinian National Authority. After two violent intifadas (uprisings), the Palestinians had decided to try their luck with the international institutions. Palestine became a non-member observer state at the United Nations and – unlike the US and Israel – a full member of the ICC. The strategy was to convince the court that Israel is guilty of war crimes in the occupied Palestinian territories. With the US’ recent threats, however, this non-violent way of seeking justice will likely have just as unfavourable an outcome for the Palestinians as the stone throwing and suicide attacks.
Of course, the US cannot decide on its own that the ICC will fail. However, the US is capable of obstruction to such an extent that the court will have trouble operating. After all, how credible is a judge who is being vilified by the so-called leader of the free world? The US used a similar strategy in the case of UNRWA: the agency, which provides welfare and education to about 5 million Palestinian refugees, is not yet defunct, but without American support it will struggle to survive.
Since its establishment in 2002, the ICC has been subject to heavy criticism, mainly over its alleged ineffectiveness. Until now, the court has only managed to convict three Africans – much to the discontent of several African nations, which feel they are being targeted unfairly. Moreover, the eventual convictions did not seem to include the protagonists of the crimes. Together with the prosecution of American war crimes in Afghanistan, the investigation of possible Israeli crimes would broaden the scope of the embattled court.
Many respected NGOs, such as Amnesty International, Human Rights Watch and the Swedish organization Diakonia, share the Palestinian view that Israel has committed and is still committing war crimes or even crimes against humanity, be it with the indiscriminate killing during the Gaza war in 2014, the illegal settlements on Palestinian land or the destruction of entire villages.
In a statement, the Permanent Representation of the State of Palestine to the ICC called the US threats against the ICC ‘a coup against the rules-based international system’. The statement continued: ‘The Trump administration wants to dismantle the international order to ensure that it can stay above the law and escape accountability along with its ally, Israel. Only those who have acted against the law fear it.’
One specific example of Israeli war crimes, seen through a Palestinian lens, is the decision to demolish Khan al-Ahmar. This Palestinian Bedouin hamlet is in the Israeli-occupied West Bank, just east of Jerusalem. Israel wants the village gone in order to expand a large illegal settlement. The crimes mentioned in this specific case include forcible displacement, ethnic cleansing and destruction of civilian property. The official referral of the Palestinian National Authority, submitted in May 2018, addressed a myriad of issues. According to Palestinian Foreign Minister Riyad al-Maliki, these include “settlement expansion, land grabs, illegal exploitation of natural resources, as well as the brutal and calculated targeting of unarmed protesters, particularly in the Gaza Strip”.
Israel, by contrast, vehemently denies having committed any war crime, and denies the jurisdiction of the ICC. Speaking to the Israeli newspaper Haaretz, an Israeli official said that the Palestinians’ appeal to the ICC and refusal to negotiate with Israel and the US was not the way to promote peace. “It’s good that the US is taking a clear stance on this matter.”
So what is in store for the Palestinians? Although some commentators fear that the fight against the occupation will get violent again, the official point of view is to stick to diplomacy. The ICC itself has said it will not be intimidated by the US. However, the situation on the ground in the occupied Palestinian territories is deteriorating. The illegal Israeli settlements keep growing, Israel’s right-wing government feels emboldened by Trump and the surrounding Arab countries seem to have other interests at the moment.
According to Nada Kiswanson, a lawyer specializing in international criminal and human rights law who works for the Palestinian human rights organization al-Haq, the ICC remains the best way forward for the Palestinian people. In an opinion piece for al-Jazeera, Kiswanson said the ICC will not be able to ensure justice for all Palestinian victims. “It can, however, see to it that Israel no longer unlawfully kills, tortures or displaces Palestinians while stealing their land for illegal settlements, without fear of any consequences.”
Kiswanson thinks that ICC prosecutor Fatou Bensouda may be able to positively influence the future: “In opening an investigation and subsequently prosecuting senior Israelis, the ICC will be sending a powerful message that Palestinians, like all other peoples, are worthy of justice, and that redress is not a gift but a right that must be unconditionally fulfilled.”