Palestine Becomes a State Party to the ICC: An Occasion to Return to the Register of Israel’s Racialized Violence

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Apr 1, 2015 Israel
[ICC Headquarters. Image from Wikimedia] [ICC Headquarters. Image from Wikimedia]

Palestine Becomes a State Party to the ICC: An Occasion to Return to the Register of Israel’s Racialized Violence

By : Noura Erakat

Today, Palestine will formally become a member of the International Criminal Court. This will give it the authority to refer a situation in its territory for investigation as well as give the Office of the Prosecutor the authority to initiate an investigation based on her discretion (propio motu). When Palestine, or the representatives of a shadow of a state, submitted an application for ad-hoc jurisdiction as well as acceded to the Rome Statute in late December 2014, analysts wrote a flurry of articles assessing the legal and political implications of an ICC investigation. I include some of those, including my own below. As I describe in my piece at the time:

The ICC will not be the site of adequate redress for Palestinians. The likely scenarios include: the court slowly killing the referral in the inaccessible and lengthy intricacies of its proceedings; Israel evading prosecution through complementarity; the prosecution of alleged crimes committed by Palestinians only; and investigation of Israel’s settlement enterprise preceded or complimented by prosecution of Palestinians. These possibilities range from abhorrent to tolerable. The ICC cannot be a destination in and of itself. It is simply one venue, and a complicated one at that, of many. Any courtroom, including the ICC, can only be effective if it is one part of a broader commitment and struggle for self-determination and justice. 

Notwithstanding these dismal possibilities, it remains imperative to revisit the death and destruction wrought in the span of fifty days in the summer 2014. The court of public opinion matters far more than that of the ICC because crimes against humanity and war crimes are abhorrent to humanity well before states legislatively proscribe them.

Nearly nine months have passed since Israel launched its latest aerial and ground offensive against the besieged population of the Gaza Strip. Beginning on 7 July 2014, Israel deployed an arsenal of sophisticated and precision weapons technology to bombard and destroy the 365 square kilometer coastal enclave for fifty days. Israel ended its bombardment despite not being close to achieving its stated military purpose; an admittedly shifting goal that ranged from destroying Hamas to reducing its weapons cache to destroying the network of tunnels that gave Palestinian militants significant leverage during the ground offensive into the Gaza Strip. The campaign was cruel and indiscriminate. 

Israel characterized all Hamas members, be they law enforcement officers, ambulance drivers, or armed combatants, as legitimate targets turning the principle of distinction meant to reduce harm to civilians on its head. Similarly, Israel deemed all infrastructure used by Hamas as a legitimate military target, be it the residence of a Hamas member sheltering his family in the night, a municipal building essential to governance, or a weapons storage facility thus disavowing a case by case assessment of the military advantage gained in the targeting of each building. 

Beyond its manipulation of law, Israel deliberately attacked civilians. In Khoza’a, Israel forces shot to death fleeing civilians in the back. In Shujai’ya it launched a revenge offensive for the capturing of a soldier and massacred sixty-six civilians in the span of sixty minutes. It attacked UN facilities providing shelter to displaced civilians on seven different occasions. In one instance, UN officials provided Israel with its coordinates thirty-three times to ensure the safety of nearly one thousand civilians and Israel struck the UNRWA school nonetheless. It sealed the border to fleeing refugees and expanded its buffer zone east and west by forty-three percent thereby further concentrating Gaza’s 1.8-million person population. It issued confusing and inconsistent warnings that left civilians without adequate time to flee or anywhere to take safe refuge.

In light of these tactics, the results could only be devastating as indeed they were: 2,104 civilians including 504 children were killed; 1,500 children were orphaned; 18,000 homes were destroyed leaving 100,000 Palestinians homeless; nearly half a million Palestinians were internally displaced at the height of the war; 373,000 children are in need of psycho-social treatment; and 143 families lost three or more people. 

Since the end of hostilities on 26 August 2014, little has improved in the lives of Palestinians in Gaza. The siege remains as tight as ever, fishermen cannot fish beyond three nautical miles of their Mediterranean shore, 830,000 families are dependent on food aid for survival, and forty-five percent of Gaza’s population is unemployed. Despite a global pledge of nearly 5.4 billion USD to rebuild the devastated enclave, only a fraction of the aid has been received and the rest is not likely to arrive any time soon. Worse, Israel remains in control of four of Gaza’s five border crossings and has severely limited the number of aid trucks and goods into the Strip. According to the Oxfam International, due to the blockade and at this rate, it will take another one hundred years to rebuild the Gaza Strip. Former President Jimmy Carter has warned that the failure to rebuild Gaza will result in another war.   

The war on Gaza and Palestinians, writ large, never ended. It continues sometimes quietly by administrative means and still other times with explicit and deadly violence. This racialized and gendered violence should be registered regardless of how the ICC and its various state parties and stakeholders decide to proceed.           

Below is a select list of reports completed to date registering the damage. 


Articles on ICC Jurisdiction 

Noura Erakat: Who is Afraid of the International Criminal Court? 

Josh Ruebner: ICC Only Option Left for Palestine  

Khaled Elgindy: The Real Reason Washington Should Worry About Abbas’ ICC Bid 

David Luban: Palestine and the ICC: Some Legal Questions 

Michael Kearney: What Would Happen If Palestine Joined the International Criminal Court? 

Alex Whiting: Palestine and the ICC: An (Imagined) View from the Inside the Court 

MERIP Roundtable featuring Darryl Li, Raja Khalidi, Mouin Rabbani, Mazen Masri, and myself: Palestine and the ICC 

GMU Panel/Audio & Transcript (featuring David Luban, Meg DeGuzman, George Bisharat, Kevin Jon Heller): 

Operation Protective Edge: Legal and Political Implications of ICC Prosecution

 

Reports on Operation Protective Edge

Gaza, 2014 Findings of an independent medical fact-finding mission

Jutta Bachmann, Laurel Baldwin-Ragaven, Hans Petter Hougen, Jennifer Leaning, Karen Kelly, Önder Özkalipci, Louis Reynolds Alicia Vacas

https://gazahealthattack.les.wordpress.com/2015/01/gazareport_eng.pdf .

 

‘IOF Commit More Massacres in the Gaza Strip, 506 Killed including 131 Children and 64 Women as the Civilian Casualties Continue to Rise

Al Mezan Center for Human Rights

http://www.mezan.org/en/details.php?id=19254&ddname=IOF&id_dept=9&id2=9&p=center

 

GAZA INITIAL RAPID ASSESSMENT, 27 August 2014,

United Nations

http://www.ochaopt.org/documents/gaza_mira_report_9september.pdf

 

Israel and the Occupied Palestinian Territories: Families under the rubble: Israeli attacks on inhabited homes

Amnesty International

https://www.amnesty.org/en/articles/news/2014/11/israeli-forces-displayed-callous-indifference-deadly-attacks-family-homes-gaza/

 

Israel: In-Depth Look at Gaza School Attacks

Human Rights Watch 

http://www.hrw.org/news/2014/09/11/israel-depth-look-gaza-school-attacks

 

Israeli Soldiers Shoot and Kill Fleeing Civilians  - July 23 and July 25 

Human Rights Watch 

http://www.hrw.org/news/2014/08/04/gaza-israeli-soldiers-shoot-and-kill-fleeing-civilians

 

Gaza: Airstrike Deaths Raise Concerns on Ground Offensive

Human Rights Watch 

http://www.hrw.org/news/2014/07/22/gaza-airstrike-deaths-raise-concerns-ground-offensive

 

Confiscation of Palestinians` property by Israeli Forces in the West Bank

Euro-Mid Observer for Human Rights

http://euromid.org/uploads/reports/English_Confiscation_of_Palestinians_WestBank.pdf

 

Israel: Serious Violations in West Bank Operations, July 2014

Human Rights Watch 

http://www.hrw.org/news/2014/07/03/israel-serious-violations-west-bank-operations

 

Black Flag: The legal and moral implications of the policy of attacking residential buildings in the Gaza Strip, Summer 2014

B`Tselem - The Israeli Information Center for Human Rights in the Occupied Territories

http://www.btselem.org/publications/summaries/201501_black_flag

 

Palestine : New report documents international crimes committed during Operation Protective Edge

FIDH 

https://www.scribd.com/doc/260100978/Palestine-New-report-documents-international-crimes-committed-during-Operation-Protective-Edge
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Setting New Precedents: Israel Boycotts Human Rights Session

The Universal Periodic Review (UPR) is a unique mechanism that intends to review the behavior of states without distinction. The UN General Assembly established it in 2006 as part of the functions of the Human Rights Council. It is a state-driven process to comprehensively assess a state`s compliance with human rights law. The Human Rights Council is to hold three two-week sessions each year during which time they review the files of sixteen member states. Accordingly each state will undergo the review every three years. As of 2011, all 193 UN member states had undergone a review.

The Human Rights Council conducted Israel`s UPR in 2009.  In response to the findings, Israel`s ambassador to the UN explained that it took the Review process "very seriously" because it is "an opportunity for genuine introspection, and frank discussion within the Israeli system" 

Israel`s second UPR is scheduled to take place in 2013. A coalition of Palestinian human rights organizations submitted their concise report on Israel`s violations between 2009 and 2012.  This document will not be read, however, because Israel is boycotting the UPR, citing bias.  In May 2012, Israel described the Human Rights Council as “a political tool and convenient platform, cynically used to advance certain political aims, to bash and demonize Israel.”

Israel`s condemnation of the Human Rights Council followed the body`s initiation of a fact-finding mission to investigate the impact of settlements in the Occupied Palestinian Territory. Today, the Council released its report at a press conference in Geneva. It states that Isreal must cease all of its settlement activity  "without preconditions" and  "must immediately initiate a process of withdrawal of all settlers", or face prosecution before the International Criminal Court. Sources in Geneva tell me that Israel`s threats of boycott aimed to derail the Council`s fact-finding mission`s report. Failing to do that, Israel unilaterally withdrew from its Universal Periodic Review all together.

This is not Israel`s first attack on the UN. It has cited bias in the past in response to the UN`s critique of its human rights violations, specifically after the World Conference Against Racism (2001); the International Court of Justice proceedings on the route of the Separation Barrier (2004); denial of entry to Special Rapporteur to the OPT, Richard Falk (2008); and its refusal to cooperate with the Human Rights Council`s fact-finding delegation to Gaza in the aftermath of Operation Cast Lead (2009). 

Israel is unique for its boycott, which evidences the tenuous nature of the voluntary compliance process. In fact, human rights advocates and governement officials worry that Israel will open the door to non-cooperation by other states. The battle for accountability continues even in the UN. Despite its acceptance of international law & human rights norms, even within the multilateral human rights body, the last word on human rights matters is political.