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ICC expands its Jurisdiction to include occupied Palestine, enrages Israel

US Rep. Ilhan Omar (D-MN) (L) talks with Speaker of the House Nancy Pelosi (D-CA) during a rally with fellow Democrats before voting on H.R. 1, or the People Act, on the East Steps of the US Capitol on March 08, 2019 in Washington, DC. (AFP photo)
(FILES) In this file photo taken on August 27, 2014, a Palestinian girl walks on the rubble strewn cieling of her family's home after she and other members of her family returned to their partially destroyed house early in the Gaza neighbourhood of Shejaiya which was one of the hardest hit by the fighting. The International Criminal Court's ruling that it has jurisdiction over events in the Palestinian territories opens the way to an investigation of alleged war crimes committed in the 2014 Isra

The International Criminal Court has announced that it has jurisdiction in the Palestinian territories illegally occupied by Israel since 1967. This decision will allow the ICC to investigate potential war crimes carried out by Israel for the first time.

On February, 5 2021, the International Criminal Court, or ICC, headquartered in The Hague, published a ruling, establishing its jurisdiction in Palestine. This jurisdictional ruling from the ICC's pre Trial Chamber one establishes that Palestiness West Bank, Gaza Strip, and East Jerusalem, which Israel has been illegally occupying since 1967, are indeed in the scope of the ICC's territorial jurisdiction, and therefore it can proceed with investigating potential war crimes committed by Israel.

In 2019, the ICC's chief prosecutor, Fatou Bensouda, had already established through a preliminary investigation that the situation in Palestine did indeed meet the Rome statutes criteria for an investigation. However, before proceeding, she sought the court's opinion on whether the Palestinian territories fell under the ICC's jurisdiction.

In 2012, Palestine achieved non member observer state status at the United Nations, and then acceded to the statute in 2015.

The Rome Statute is the treaty that established the International Criminal Court in 1998. It was formed with the objective of holding individuals accountable for violating international law, specifically war crimes, crimes against humanity, genocide, and the crime of aggression.

123 countries are state parties to the Rome Statute.

However, Sudan, Russia Israel and the United States, despite signing the treaty, informed the UN Under Secretary General that they intended to no longer become a party to the Treaty.

 

Of course the United States and Israel would have good reason to, if they ratified the treaty, most likely, every single US president and Israeli Prime Minister would be convicted of war crimes and genocide going back at least several decades, including a majority of their cabinets.

ICC investigate US war crimes in Afghanistan

The US is currently being investigated by the ICC for war crimes in Afghanistan, and when Trump was in office he actually put sanctions on the ICC's chief prosecutor Fatou Bensouda, as well as Phakiso Mochochoko, the ICC director of jurisdiction, in order to block them from carrying out their investigation or being able to travel to the United States.

There are several reasons why the ICC under Fatou Bensouda has chosen to investigate Israel, and potentially Hamas and the PA for war crimes. This includes Israel's invasion and brutal assault on the Gaza Strip, in 2014, codenamed Operation Protective Edge.

This was one of the most horrific moments in Palestine's history, under the Zionist occupation, which is really saying something. Israel, at the time, launched a ground invasion of Gaza In July 2014. During this period, which lasted around seven weeks until August 26, the United Nations report said that the scale of devastation was unprecedented.

Palestinians fired around 4800 rockets and 1750 mortars, killing 67 Israeli soldiers and six civilians. At the same time, Israel carried out 6000 airstrikes fired 14,500 tank shells and 45,000 artillery shells.

The death toll among Palestinians reached 2252, 65% of them were civilians, 25% of them were children. On top of that 11,000 Palestinians were left wounded. According UN estimates, at the time, up to 1000 children would be left permanently disabled as a result of the hostilities in 2014.

The report also said that post traumatic stress disorder, (PTSD), and other stress related symptoms have increased and about 20%, of the population in Gaza are estimated to be in need of long term mental health assistance, this includes 373,000.

 

 Israel targeted residential buildings on purpose, with the vast majority of victims dying, either in or near their homes. This was clearly a strategy ordered at the highest levels of the Israeli government.

In total the United Nations estimates that 178,000 homes were damaged or destroyed and 100,000 Palestinians were left homeless. After this horrific war Israel then barred construction materials from even entering Gaza, so as to prevent Palestinians from rebuilding. To this day Gaza is still under siege.

Israel also shelled several United Nations facilities, as it has done in other countries before, like Lebanon. In total 118 UNWRA installations were damaged, including 83 schools and 10 health centres, among other crimes envisioned in the scope of the ICC's investigation, are the wave of killings and brutal injuries inflicted on Palestinians during the right to return marches from 2018 to 2019.

 

During this time, the Israeli occupation forces inflicted immeasurable casualties on unarmed innocent Palestinians protesting peacefully for the right to return to their land. Israeli forces deliberately targeted Palestinians in their lower limbs by shooting them in their knees.

According to a report by the United Nations in this period alone, 6100 Palestinians were injured, with live ammunition and another 3000 by bullet fragmentation rubber coated metal bullets, or by hits from tear gas canisters. 122 people had to have their limbs amputated. 22 of them were children.

The United Nations Commission also found that Israeli snipers deliberately shot at journalists, health workers, children and persons with disabilities, knowing they were clearly recognisable as such. In one instance an article in Haaretz  features an interview with an Israeli sniper who boasts about having shot 42 knees in a single day.

 

By contrast, 4 Israelis were injured during this entire period. Another important area of concern for the ICC is the building of illegal Israeli settlements on Palestinian land. UN resolutions 446 and 447 assert Israel's settlements in these areas are null and void, that they are illegal under international law.

Israel has been ethnically cleansing Palestine for decades; millions of Palestinians have been expelled in a diasporas, while millions of others are still living in Palestine as refugees, generation after generation, stateless on their own land.

Israel's widespread practice of bulldozing people's homes in broad daylight has been ignored by the international community, destroying people's homes, whether with bombs or bulldozers and forcing them to flee so that you can bring in your own people, is called ethnic cleansing.

This is a brazen violation of international law, it is illegal under the Geneva Convention and it is considered a crime against humanity. Not even a year ago Netanyahu was still trying to push his annexation plan to seize the Jordan Valley and up to another 30% of the West Bank.

After the ICC published its decision on February 5 Israeli Prime Minister Netanyahu went on a tirade, in which he expressed outrage and called the court's decision quote pure anti-Semitism. He said Israel would do everything you can to fight the ruling.

When the ICC investigates Israel for fake war crimes this is pure anti-semitism. The court established to prevent atrocities, like the Nazi Holocaust against the Jewish people, is now targeting the one state of the Jewish people.

Israeli Prime Minister, Benjamin Netanyahu

Of course, what Netanyahu is saying here is absurd, the ICC does not prosecute entire countries, the ICC prosecutes individuals, whether they're government officials military leaders, and so on. No matter what religion, ethnicity or nationality they are, as it has done in the past.

 

 Netanyahu also conveniently fails to mention that the ICC's decision applies to everyone in Palestine. This means that the ICC can also investigate Hamas and the Palestinian Authority, should it chooses to do so. Reacting to this announcement, Germany, and Hungary's foreign ministers also came out against the decision, the German Foreign Minister tweeted that the court has no jurisdiction, because of the absence of the element of Palestinian statehood required by international law.

This is extremely hypocritical because the entire international community says Palestine is not a state, they prevent Palestine from becoming a state and then when Palestinians try to obtain justice they give them no other avenue. This doesn't change the fact that Palestine is already acceded to the Rome Statute in 2015.

The United States, which subsidizes the Israeli occupation to the tune of $3.8 billion a year in military aid, so that it can shoot unarmed Palestinians in the knees and murder them in aerial bombardments, also condemned this announcement by the ICC.

 

Israel is the largest recipient of aid from the United States since World War Two, even as recently as December 2020 in the middle of a pandemic and economic crisis, with millions of Americans jobless and without health care, the United States still gave Israel $500 million.

Now on the flip side, Hamas and the Palestinian Authority actually welcomed the decision by the ICC despite the fact that they could also face prosecution themselves.

Many NGOs and human rights groups also welcomed this ruling by the ICC, Amnesty International, in particular, said that an ICC investigation marks a long overdue step towards justice for victims and is a chance to end the cycle of impunity that is at the heart of the human rights crisis in the occupied Palestinian territories.

Reacting to the news that the International Criminal Court at The Hague would be expanding its jurisdiction to include the Palestinian territories, illegally occupied by Israel since 1967 is Michael link.

He is associate professor of law at Western University in Ontario and also the United Nations Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967. He asserts that the leading political organs of the United Nations have repeatedly failed to enforce their own significant body of resolutions on the Israeli occupation. This ruling opens the door for credible allegations of Rome Statute crimes to be finally investigated and potentially reach the trial stage at the ICC.

Germany, Hungary and the US join Israel against ICC ruling

The decision by the ICC surrounding its jurisdiction of Palestine has received a lot of pushback from not just Israel but, Germany, Hungary, the United States as well. We've seen the Israeli embassies dispatching their ambassadors to put a lot of pressure on other countries to tell the ICC not to go ahead with this.

Netanyahu was saying that the ICC is anti-Semitic, Danny Danon their Permanent Representative to the UN was saying that Fatou Bensouda, the ICC chief prosecutor, should be indicted herself.

A fundamental principle that every first year law student learns in any law school around the world is the independence of the judiciary. That courts once created and judges appointed, are to be independent of political influences and are to be able to make their decisions in full confidence that their independence is going to be respected.

That's the only way in which we build public trust in the operation of the courts and the rule of law. So ever since the ICC announced, or the prosecutor announced that she was going to initiate investigations into the complaints coming to her office with respect to alleged war crimes, not only by Israel but also by Palestinian armed groups as well in Gaza and the West Bank in East Jerusalem. There has been a concerted pressure on the court which reached its apex last year when the United States said it was going to ban the travel to the United States of any international criminal court officials.

It's astounding to me in this modern day and age that the prosecutor and judges and staff of an independent international court would be under threat of arrest by a leading Western democracy and the attention is not on the country or the groups who are alleged to have committed war crimes, it seems to have turned international criminal justice upside down.

Professor Michel Link, Western University, Ontario

What are some of the consequences that Israeli officials or Palestinian officials could face if they were to be charged or convicted?

One big one obviously is the fear of arrest. The practice of a court in other proceedings has to been to create... hidden indictments, which are then sent to all members of the current state members of the International Criminal Court. And those indictments are sitting there waiting for a potential war criminal to come to their jurisdiction, by which they'd be arrested and then turned over to the ICC in The Hague. So that would be the concern of anybody who might have participated, either in a military sense or in a political sense with respect to the commission of alleged war crimes.

So the big impact will be on travel, other impacts would be being arrested and then spending a long period of time as the guest of the, of the ICC either awaiting trial or if convicted then serving time in, I believe, Dutch jails.

Professor Michel Link, Western University, Ontario

The scope of the ICC's ruling includes Operation Protective Edge, in 2014, the right to return protests or marches in 2018, and the illegal settlements that Israel has been building.

I don't think the file is closed as to what the prosecutor might look at, assuming everything begins going forward with respect to investigation. You've mentioned the three principal areas, involving Israel, but I, you know, I could imagine that there might be future complaints which may turn into allegations of a war crime, with respect to apartheid. With respect to wars of aggression, With respect to crimes against humanity, so all of those are part and parcel of what could happen, depending on where the prosecutor goes and what facts are revealed to him or to her.

Professor Michel Link, Western University, Ontario

Isn't there a glaring double standard going on here because you know the Israelis are arguing that Palestine can be considered under ICC jurisdiction because it doesn't possess the key elements of effective territorial control.

 

What they're saying, essentially, is that it's not a real state and that therefore the ICC can't say it has jurisdiction there, yet, just a few weeks ago, we were hearing from the Israelis in terms of the COVID vaccine, they said oh well the Palestinians are on their own, they can stand on their own to feed they're in charge of their own Health Affairs. Isn't that a striking double standard there, and the hypocrisy?

There is a two sided argument there where, where it has to do with obligations of the occupier towards the protected population under occupation. Everything is then shifted over to the responsibility of the Palestinian Authority, and where it has to do with with other issues, there's a denial that there's that there's a denial there exists a Palestinian state. remember this you know the the ruling issued on Friday was a relatively narrow ruling. It didn't say that Palestine constitutes a state with respect to all aspects of international law. It said that it constitutes a state, and therefore has the legal personality to sign the Rome treaty and be bound by it. Within the definition of a state party, for the purposes of the Rome Statute, so it's a it's a narrower definition than what some people have have attributed to it. It's a technical definition, saying that the, the PA has enough attributes of legal personality, to be able to sign the Rome Statute. And that and so the the cries with respect to some Western countries that that Palestine is not a state that's a separate issue that will come down the road for other issues. I think they're overblowing it and I mean when I hear that argument raised including by my own government, you know, it tells me that they can't be serious with, with respect to wanting to see, you know, Justice applied impartially throughout the world wherever the Rome Statute would wind up applying,

Professor Michel Link, Western University, Ontario

If we're potentially going to see some charges brought, how long would the process take?

We're at a bit of unknown ground but keep this in mind, the Palestinian Authority assigned the Rome Statute I believe in January 2015, six years ago, and it then issued its initial complaints, very shortly after that. So this has been before the court now for over six years. And we're only satisfying the end of the first of what are three stages. The preliminary investigation, the formal investigation, and then, if it passes that hurdle, then the trial.

So, there might be complications with respect to gathering evidence, Israel will not allow investigators to come to either Israel or the west bank or East Jerusalem. So all that can be done, they could go through Egypt into, into Gaza to be able to gather some evidence, but that we would all acknowledge that's going to be complicated and time consuming and it's and the prosecutor is going to have to be satisfied that the evidence that that he or she has gathered is going to be able to stand up in court. You want all your evidence to be as solid as possible.

On the other hand, the allegation with respect to the settlements, my sense is that it's coming close to being an open and closed legal question. The settlements have been illegal under international humanitarian law since the Fourth Geneva Convention was adopted over 70 years ago that was strengthened by the 1977 Additional Protocol, and they were, that was a centrepiece of the war crimes listed in the 1998 Rome Statute.

Yes, there will have to be issues addressed as to if the settlements are a violation of the Rome Statute which I'm I don't, I can be difficult for me to see why they wouldn't be found to be. Then, who do you wind up identifying as the individuals who, to whom Rome Statute charges would be would be laid against because as we know, the Rome Statute identifies individuals not states as those who have been in the docket and those who would wind up being indicted, so there would be some effort to identify the leading military or civilian or political leaders who played a significant part in the shaping of the other settlements, and of course the last issue would be the identification of leading political or military figures with respect to Palestinian armed groups to whom indictment maybe, maybe flowing towards as well.

Professor Michel Link, Western University, Ontario

Again the ICC is saying it's ready to investigate both sides, not just Israel. So, you know, it hasn't been charged anyone with a crime yet, so it's quite astonishing to see so much pushback from this.

This is one of the very few forms of modern meaningful accountability that has arisen with respect to the 53 year old unaccountable Israeli occupation. All of the hundreds of resolutions that have been adopted by the UN Security Council, the UN General Assembly the UN Human Rights Council, among other leading UN bodies, there's been no steps taken with respect to any form of meaningful accountability, with respect to Israel and its conduct of the, of the occupation. Now when Israel finally faces the prospect still in the future, with respect to appearing in a docket to answer charges related to the Rome Statute. Of course, there is some worry and i think that's that's justifiable. If the world had taken the issue of accountability seriously 40 years ago, 20 years ago, there wouldn't have been a need for an ICC process, because Israel would have been compelled by international pressure and international law to to vacate its occupation, and to allow full Palestinian self determination on the Palestinian territory.

Professor Michel Link, Western University, Ontario

The double standards displayed here by the Israelis is incredible but hardly surprising, once again Israel claims that Palestine is not a real state and that therefore it cannot be placed under ICC jurisdiction.

However, just a few weeks ago when it came to Palestinians not having sufficient doses of the COVID-19 vaccine, Israel claimed that Palestine was responsible for its own jurisdiction.

The only democracy in the Middle East

So once again we see here the glaring hypocrisy of the Zionist regime, when it suits them they're a democracy, they're the only democracy in the Middle East, but when it comes to actually holding military personnel and politicians accountable for possible war crimes, suddenly, they're not interested in the pursuit of justice and accountability and checks and balances.

And when it comes to the Palestinians being under vaccinated, not having access to the same public health facilities and infrastructure, because their land is under occupation and they're constantly bombarded and murdered, Israel claims they're not standing in the way and Palestinians have self determination. But when it comes to Palestinians actually seeking justice for the atrocities that they were submitted to, now Israel says they can't and speaks for them.

Statement by the ICC is not even a judgment or a ruling

The statement by the ICC is not even a judgment or a ruling, it doesn't even charge anyone with a crime, let alone convict them. Yet, Israeli politicians and foreign leaders are up in arms, as if it were the biggest affront on their person, the very prospect or notion that Israeli politicians and military leaders could face justice for carrying out war crimes. It's inconceivable in their view.

This speaks of the derangement, the arrogance and the disconnect at play here, you can see how Israel is so used to oppressing the Palestinian people with impunity that the very idea that Palestinians could attain some sort of justice, some semblance of accountability, no matter how small is perceived as an attack.

 

 


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