As the saying goes, the first casualty of war is truth. Misinformation, disinformation, and propaganda are common in situations of armed conflict, as warring factions and their allies attempt to secure narratives that serve their wartime goals. No modern conflict is as rife with falsehood as the conflict in the Middle East. This is a reality that extends to ongoing efforts to address mass atrocities committed in Israel and Palestine. In what follows, I dismiss some popular but erroneous claims about the work of the International Criminal Court (ICC) and its investigation into the situation in Palestine.
First, there is the issue of jurisdiction. Israel, the United States and several other states have questioned whether the ICC has jurisdiction over Israeli officials. According to them, because Israel has never joined the ICC, the court cannot exercise jurisdiction over Israeli citizens. Others, such as former Canadian Justice Minister Irwin Cotler, a staunch defender of Israel and opponent of accountability for atrocities against Palestinians, have attempted to argue that the ICC has jurisdiction over Palestinian citizens but not Israeli citizens. I did it. 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 began a preliminary investigation into the situation in Palestine. In 2021, judges ruled that ICC prosecutors have jurisdiction over the West Bank, including the Gaza Strip and east Jerusalem, and a formal inquiry into the situation in Palestine followed.
Because Palestine is a pre-ICC state (and recognized by 149 of the 193 UN member states), the court has jurisdiction to investigate all Palestinian citizens, regardless of where the atrocities were committed. The Court also has jurisdiction over all atrocities committed in the Palestinian territories, regardless of the nationality of the perpetrators. As a result, the ICC has jurisdiction over crimes committed in Israel by Hamas and its fighters, even though Israel is not an ICC member, and the court has jurisdiction over Israeli perpetrators of mass atrocities committed in Gaza and the West Bank. has. Any suggestion to the contrary is not only inaccurate, it represents an effort to obstruct one of the only avenues for accountability in a context where credible allegations of war crimes, crimes against humanity, ethnic cleansing and genocide are rampant.
Second, Israeli leaders have repeatedly claimed that the ICC is politically opposed to Israel. This is not true. The tribunal was created to hold individuals, rather than states, accountable for international crimes, including war crimes, crimes against humanity, genocide and crimes of aggression. Subjecting Benjamin Netanyahu to prosecution is a verdict against Bibi, not a verdict against the state of Israel.
Could the ICC nevertheless be biased against Israel? Again, no. The ICC had ample opportunity to investigate and prosecute Israel’s actions, but declined to do so. If the court had been somewhat biased against Israel, it would have taken the opportunity to target Israeli officials for the 2010 attacks on the Mavi Marmara and the Gaza Flotilla. But the court did not do so. The ICC similarly declined to take action on alleged international crimes in 2014, 2018, and 2021. If so, the court has shown a certain degree of bias toward Palestinian victims and survivors by moving slowly with the investigation and repeatedly refusing to issue arrest warrants for atrocities against Palestinian civilians.
Third, some argue that the ICC should not investigate Israeli officials because Israel has a strong and independent judiciary. The suggestion here is that if Israel has a strong judicial system, the ICC should step down. However, this is a fundamental misunderstanding of the basic rules and laws that govern the operation of the courts.
The ICC is premised on the principle of subsidiarity. Simply put, this means that the ICC has issued a warrant against an alleged perpetrator, but that the state involved is (a) actively investigating and prosecuting the same perpetrator for the same conduct as the ICC, and (b) able and willing to do so. . In a genuine way (as opposed to running a sham investigation to protect the perpetrator), the relevant ICC cases could be challenged in court and deemed inadmissible.
Israel has never investigated or prosecuted its leaders for war crimes committed in Gaza or the West Bank. Instead, the Israel Defense Forces typically claim that violations of international humanitarian law were fabrications or mistakes, or, worse, display such ‘anti-Israel’ hostility. The dominant culture is one of impunity, especially among high-ranking officials in the military and government.
As a result, Israel will fail the first test if the ICC issues arrest warrants for Israeli Prime Minister Benjamin Netanyahu or Defense Minister Yoav Gallant on charges of war crimes of deliberately starving Palestinians. We do not investigate high-ranking figures for war crimes. We will not investigate cabinet ministers who are openly inciting the annexation of Gaza and ethnic cleansing, let alone genocide. The quality of Israel’s judiciary ultimately means nothing if it is inactive. A country can have a Cadillac of a judicial system, but if it refuses to investigate and prosecute the same people for the same conduct targeted by the ICC, then it fails the test of complementarity and the case is allowed in the court.
Finally, there are those who argue that ICC intervention would hinder the chances of peace. But a question arises: What peace? Neither Israel nor Hamas have shown any interest in Palestinians coexisting peacefully and safely with Israel. Even Israel’s closest allies have acknowledged that Israel is not interested in a two-state solution. For example, Canadian Prime Minister Justin Trudeau said, “The Israeli government under Prime Minister Netanyahu has unacceptably closed any path toward a two-state solution.” The evidence is evidence of settlement expansion, the forced expulsion of Palestinians from their homes and lands, and a history of apartheid given credence by the International Court of Justice’s ruling on the legal consequences of Israel’s previous illegal occupation of Palestinian territory. It’s an ongoing argument. this year.
There are legitimate concerns about how the ICC definition affects peace negotiations and the peace process. But such concerns need to be seen in context, and without peace on offer, it becomes implausible to argue that justice can undermine peace. This is especially true in situations such as the long-running conflict between Israel and Palestine, where peace has been given dozens of opportunities but never responsibility. For all victims and survivors in Israel and Palestine, it is timeless for countries to support the ICC through the fog of accountability efforts. This is not because ICC is perfect (it is far from it), but because it provides some degree of compensation. Justice and responsibility for Israeli and Palestinian victims who have suffered for too long.
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