In a highly unusual pretrial chamber ruling on July 16, International Criminal Court (ICC) judges reversed a decision by the court’s chief prosecutor, Fatou Bensouda, not to investigate Israel’s assault on a Gaza-bound flotilla in 2010, which left 10 people dead.
The judges said she committed “errors of fact,” reached “simplistic conclusions” by ignoring war crimes complaints and the “unnecessarily cruel treatment of the ships’ passengers” and failed to seriously consider the possibility that the deaths and injuries caused by Israeli navy commandos were “systematic or resulted from a deliberate plan or policy to attack, kill or injure civilians.”
But Bensouda on Monday said she would not launch a full criminal investigation into allegations of war crimes against Israeli military and political leaders and naval forces. She has appealed the judges’ ruling, which Israeli politicians and commentators denounced as shocking. Yonah Jeremy Bob wrote in The Jerusalem Post, “The decision puts the ICC the closest it has ever been to intervening directly in the Israeli-Arab conflict.”
It is now up to an ICC appeals court to decide whether to end Israel’s impunity. Upholding the pretrial chamber’s decision would pave the way for considering the Palestinian Foreign Ministry’s submissions presented to the ICC in June, after Palestine’s accession in April to the Rome Statute, which established the ICC. The dossier provides extensive evidence regarding Israel’s brutal 2014 assault on Gaza, its treatment of Palestinian prisoners and the expansion of Jewish settlements in the occupied West Bank.
No Israeli official has been held accountable for Israel’s indiscriminate attacks during its 2014 Gaza offensive, in which 2,251 Palestinians were killed — most of them civilians, including more than 500 children. No serious investigation has been initiated to date. Israel’s internal report published last month adopts the official narrative, which whitewashes and justifies the crimes by blaming the victims. In light of the legal cover by Israel’s judicial system, the ICC offers the only avenue for possible accountability.
The court’s decision on Bensouda’s appeal could go a long way in determining the future of the ICC, which is criticized as a venue to investigate and prosecute mainly African human rights violators. The court has ignored allegations of war crimes and crimes against humanity committed by Western leaders. If international law is to function as an impediment to violence and high crimes, it must function evenhandedly. The ICC has a chance to show that can happen.
Israel’s assault on Gaza
Since 2008, the Israeli military has launched three lethal assaults on Gaza, killing thousands of people. Israel knew that its military campaigns would cause significant civilian fatalities and injuries, destroy civilian property and damage infrastructure and the environment. There is strong evidence that Israel was applying the Dahiya doctrine, a military strategy that, according to the United Nations Human Rights Council, involves “the application of disproportionate force and causing of great damage and destruction to civilian property and infrastructure and suffering to civilian populations.”
Such attacks violate the principle of proportionality and distinction, which forbids the deliberate targeting of civilians or civilian property. Nearly 10,000 Palestinians were wounded during the 51-day assault on Gaza. Israel forces bombed 142 schools, including six U.N. schools where civilians took refuge, the coordinates of which were repeatedly communicated to Israeli officials. Israeli soldiers shot and killed fleeing civilians and those working to recover the bodies of the dead. Israeli warplanes repeatedly bombed Gaza’s only power plant, destroyed one-third of Gaza’s hospitals, 29 ambulances and 14 primary health care clinics, demolished 41 mosques and damaged an additional 120.
Nothing symbolized more the horror that was unleashed on the people of Gaza than the repeated shelling of U.N. facilities harboring civilians who had been explicitly told to seek a safe haven there.
United Nations Secretary General Ban Ki-moon
There is no question that Israel willfully caused wanton destruction, great suffering and serious injury to body and health. Tens of thousands of Palestinians lost their homes. Damage to sewage and water infrastructure affected two-thirds of the people of Gaza. UNICEF said the Israeli offensive has had a “catastrophic and tragic impact” on children in Gaza; about 373,000 children had traumatic experiences and needed psychological help. The U.N. Relief and Works Agency has warned about a public health catastrophe.
“The massive death and destruction in Gaza have shocked and shamed the world,” U.N. Secretary General Ban Ki-moon said last year. “Nothing symbolized more the horror that was unleashed on the people of Gaza than the repeated shelling of U.N. facilities harboring civilians who had been explicitly told to seek a safe haven there. These attacks were outrageous, unacceptable and unjustifiable.”
Holding Israel accountable
Ban and former U.N. High Commissioner for Human Rights Navi Pillay have called for accountability and justice. And there is a growing body of evidence compiled by U.N. agencies and other nongovernmental organizations that strongly suggest Israel’s crimes in Gaza fall under the ICC’s jurisdiction.
In a report released on Wednesday, London-based advocacy group Amnesty International said, “Israeli forces carried out war crimes” during its offensive in Gaza’s Rafah. “There is strong evidence that Israeli forces committed war crimes in their relentless and massive bombardment of residential areas of Rafah in order to foil the capture of Lt. Hadar Goldin, displaying a shocking disregard for civilian lives,” said Philip Luther, the director of the Middle East and North Africa program at Amnesty International. “They carried out a series of disproportionate or otherwise indiscriminate attacks, which they have completely failed to investigate independently.”
The National Lawyers Guild Palestine subcommittee recently sent its revised submission to Bensouda, based on new reports and materials highlighting why Israeli’s self-defense claims are false and are not supported by fact or any law. Another report by Breaking the Silence, an advocacy group made up of current and former Israeli soldiers, includes dozens of testimonies that show the Israeli military did not meet its obligations to protect civilians in wartime. A similar report by the U.N. Independent Commission of Inquiry in Gaza also contains evidence of possible war crimes and concludes that the mass destruction and killing inflicted by Israeli forces “may have constituted military tactics reflective of a broader policy, approved at least tacitly by decision-makers at the highest levels of the government of Israel.”
To be clear, Israel is not the only liable party. Any investigation into war crimes and crimes against humanity committed by Israeli officials should also look into whether U.S. officials aided and abetted these crimes. The U.S. Congress, Presidents George W. Bush and Barack Obama and key members of their administrations — who provided financial assistance, weapons and other military support to Israel — were all aiders and abettors of Israel’s crimes in the Gaza Strip. For example, on July 20, 2014, in the midst of its offensive in Gaza, Israel, apparently running short on military supplies, requested additional ammunition, including 140-mm tank rounds and 40-mm illumination grenades from the United States. Three days later, the U.S. Defense Department authorized the transfer of munitions stored in Israel to the Israeli authorities. In early August, Congress passed an appropriation of $225 million for Israel’s Iron Dome missile defense system without a debate; Obama immediately signed the bill.
A full criminal investigation by the ICC would send a clear message to all involved either in committing or in aiding and abetting Israel’s egregious crimes against Palestinian civilians and civilian infrastructure that they could be held accountable for their involvement. This could help end the continuing breaches of international law and the impunity that has underpinned Israel’s ever-intensifying aggression, which has caused and continues to cause extreme suffering to Palestinians. A full probe by the ICC prosecutor into Israel’s actions and the role of its American enablers would be a first step toward redeeming the court’s tainted reputation.