ICC Opens Investigation Of Potential Israeli War
Crimes
Allan C. Brownfeld, Editor
Special Interest Report
April 2021
In March, the International Criminal Court (ICC) chief prosecutor opened a
formal investigation into alleged war crimes in the occupied Palestinian
territories. Fatov Masouda said the probe would cover events in the
Israeli-occupied West Bank, East Jerusalem and Gaza Strip since June 13,
2014. The Hague-based court ruled that it could exercise its criminal
jurisdiction over the territories. Israel rejected Bensouda’s decision
while Palestinians praised it. Israeli Prime minister Netanyahu said it was
“anti-Semitic.” The ICC has authority to prosecute those accused of
genocide, crimes against humanity, and war crimes on the territory of states
party to the Rome Statute, its founding treaty. Israel has never ratified
the Rome Statute, but the Secretary General of the U.N. accepted the
accession of the Palestinians in 2015.
Many Israeli and Jewish human rights advocates welcome the ICC
investigation. Writing in Mondoweiss (March 4, 2021), Larry Derfner, for
many years a columnist for the Jerusalem Post and now a contributor to
Haaretz, notes that, “There’s a natural resistance to saying that your
country deserves to be investigated for war crimes by the ICC in The Hague.
But if you believe that Israel’s open-ended occupation and the settlements
and lethal onslaughts in Gaza that go with it are morally untenable, how do
you avoid that conclusion?”
Derfner, the author of “No Country For Jewish Liberals,” declares that, “The
arguments against an investigation don’t stand up. I suspect Netanyahu
knows that the real reason the ICC doesn’t investigate Iran or Syria... or a
number of other regimes whose criminality exceeds... Israel’s... is because
the wrongs these regimes commit don’t effect a state that has granted the
ICC jurisdiction over it by signing the Rome Statute. Neither Iran nor
Syria or the other countries are terrorizing states that have signed the
Rome Statute, so unfortunately North Korea, Zimbabwe, etc. are free to
plague their citizens as much as they want to and they will fall outside
the ICC’s purview. Israel hasn’t signed the Rome Statute either but the
difference is that Palestine has. Palestine—-recognized by the U.N. General
Assembly as the West Bank, East Jerusalem and Gaza—-is where Israel’s
persecution has been taking place. It was the government of Palestine, the
Palestinian Authority, that asked the ICC to investigate Israel for war
crimes.”
Larry Derfner concludes: “Is it fair that the ICC is investigating Israel
for war crimes? In the narrow legal sense, yes. In the larger moral sense,
it’s more than fair.”
The new ICC role, says Michael Sfard, the Israeli human rights attorney,
means that it cannot “evade” an investigation and possible prosecution of
Israeli officials over the illegal settlements policy on the West Bank.
Speaking to Ori Nir on an Americans for Peace Now webinar in February,
Sfard said that the ICC can now begin an investigation in earnest:
> “ And Israel is in a box. It will say that it has legal mechanisms to
investigate war crimes stemming from its assaults on Gaza and other
atrocities but it has no such fig leaf for the settlements... On the issue
of settlements, Israel does not claim to investigate and prosecute. For
Israel, settlements are not illegal, and so it’s an official policy... .If
the ICC were to drop a case against Israel, that would cause a domino effect
of developing world countries leaving the court. So it’s an existential
problem for the ICC.” **
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