The way ahead: taking Israel to the ICC

By Ruth Tenne

The stalled “peace” negotiation with Israel seems to suggest that the only viable option left for the Palestinian nation is to take Israel to the International Criminal Court(ICC). Indeed, the chief Palestinian negotiator, Saeb Erekat, said recently that “the Palestinians would take Israel to the International Criminal Court (ICC) for war crimes and violations of international law. The Palestinians will also seek membership in 63 international organizations, including the ICC”.

In November 2012, the United Nations General Assembly recognized Palestine as a non-member state, which meant that the Palestinians are free to sign up to the ICC’s Rome Statute and take Israel to the criminal court in Hague. However, with the resumption of peace talks between the Israelis and the Palestinians in July 2013, the US put pressure on the Palestinian leadership not to go to the ICC while the negotiations are taking place. It appears that the Palestinian president, Mahmoud Abbas, submitted to the US pressure and is, so far, refusing to sign the Rome Statute, which would legally offer him a legal access to the ICC. This was fully recognized in a recent statement and petition by Amnesty International, which claimed that Palestine should accede to the |ICC now. It said:

One year ago, the UN General Assembly voted to recognize Palestinian statehood. In the year since then, the Palestinian leadership has taken no statesmanlike steps. It has not signed any UN treaties that would protect human rights, or the Geneva Conventions, or the Rome Statute

of the International Criminal Court (ICC). It should do so without further delay. More than 16,500 Amnesty International activists around the world have signed petitions and written letters to Palestinian President Mahmoud Abbas to persuade him that acceding to the ICC will show that no party will again be able to commit international crimes against civilians with impunity on Palestinian territory. This promise has been deferred, Amnesty International was told in meetings with the Palestinian Authority earlier this year, while efforts are put into diplomatic negotiations with Israel. Yet, unless ending impunity and human rights abuses are at the heart of diplomacy, a just and enduring resolution of the Israeli-Palestinian conflict will remain elusive. The International Criminal Court and other international justice mechanisms such as universal jurisdiction are important potential avenues towards accountability for victims of crimes under international law on all sides.

In the period preceding the Palestinian appeal to the UN General Assembly, I argued, in article on Middle East Online, that “An official recognition of a Palestinian state by UN member states will grant the new state access to international organizations such as the IMF, the World Bank, the World Health Organization, UNESCO, ICC, ICJ, UNICEF and dozens of other bodies associated [with] the UN.”

… the Palestinian leadership seems to have succumbed to US pressure and is refraining from ratifying the Rome Statute, which will enable Palestine to take Israel to the ICC for violating international and humanitarian law.

Yet, the Palestinian leadership seems to have succumbed to US pressure and is refraining from ratifying the Rome Statute, which will enable Palestine to take Israel to the ICC for violating international and humanitarian law. The leadership’s position, however, is not shared by Palestinian human rights organizations. Al-Haq and the Palestinian Centre for Human Rights are indeed pushing for Palestine to ratify the ICC statute and other international treaties. In an article published on Al-Jazeera newswebsite, Shawn Jabrin, the director of Al-Hagq, an independent Palestinian human rights organization, argues that it

goes against the very object and purpose of the ICC to allow states to escape accountability because they changed their mind after triggering the court’s jurisdiction, whether by subsequently refusing to ratify the statute or “pulling back” the initial referral. Justice cannot be held to ransom in this way.

In a poignant article published on Redress Information & Analysis, the writer and political commentator Stuart Littlewood points out that

Its upgraded status now enables Palestine to take part in UN debates and join bodies like the International Criminal Court… Predictably, Israel flew into a rage at the prospect and said the move pushed the peace process “backwards”, while the US said it was “unfortunate”. So, what has the Palestinian leadership done with this precious gift of empowerment from the international community? Nothing.

In a further article, Mr Littlewood contends convincingly that “it’s up to civil society to set an example, brush aside the political posers and take direct action”. He goes on to say: “As it happens, a specially drafted letter to the ICC has suddenly popped into my inbox. It appears to have originated from the Sabeel international conference… The idea is for thousands of copies of the letter to be sent by individual activists and groups from all over the world”. Mr Littlewood has duly attached to his article a template letter to the ICC which had reportedly been drafted by a Palestinian legal team.

… human rights activists all over the world are of the view that Israel’s rampant colonization of the West Bank is a complete violation of the Fourth Geneva Convention and international law which ought to come under the jurisdiction of the International Criminal Court.

Having argued in the past for such an initiative to be undertaken by the Palestinian leadership, I felt obliged to respond to this letter campaign. I, however, have slightly adapted the letter so as to highlight the fact that human rights activists all over the world are of the view that Israel’s rampant colonization of the West Bank is a complete violation of the Fourth Geneva Convention and international law which ought to come under the jurisdiction of the International Criminal Court. My slightly adjusted template letter to the ICC highlighted the main points made by the campaign legal team. It was sent to the ICC in January 2014 employing the following text:

As an Israeli human rights activist, I urge for investigation to be initiated by the Office of the Prosecutor as to determine whether war crimes have been committed in connection with the transfer of civilian population into territory of Palestine which is under the belligerent occupation of Israel as from 1967. Power for the initiation of such an investigation would appear to exist under Article 15 of the Statute of the International Criminal Court.

It is my understanding that such an unlawful transfer has occurred in a manner that appears to constitute a violation of Article 8 (2) (b) (viii) of the Rome Statute which refers to: “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory”.

From facts available in the public domain, such transfers have risen to the level of gravity required for action by the court. Transfers of many thousands of civilians continue to be carried out by Israel with impunity.

The fact of a violation of the comparable provision of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949 has been determined by United Nations organs, including the General Assembly, the Security Council and the International Court of Justice. These organs have determined a violation by Israel as stated by the High Contracting Parties to the Geneva Convention (15 July 1999): “The participating High Contracting Parties reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem. Furthermore, they reiterated the need for full respect for the provisions of the said Convention in that Territory.”

I also understand that the court has jurisdiction over persons potentially responsible for such transfers. The declaration lodged with the Registrar of the Court by the Government of Palestine on 21 January 2009 under Article 12 (3) of the Rome Statute confers jurisdiction over war crimes committed in the territory of Palestine since 1 July 2002.

The matter has become urgent as it is vital to any peace agreement between Israel and the Palestinian nation. I therefore feel it is imperative that an investigation be initiated without delay so as to prevent the victimization of thousands of Palestinians whose land is illegally confiscated, annexed, and colonized by an illegal occupier.

Although the ICC, as expected, did not respond to my letter , I do believe that the campaign letters to the ICC would help keep Israel’s crimes on its agenda and will eventually drive the Palestinian leadership to ratify the Rome Statute and submit a criminal case against Israel – either as a particular test case or as a more general war crime referring to Israel’s illegal occupation and expanding settlements in the West Bank as well as to its unlawful blockade of the Gaza strip .

As a senior Middle East researcher for Human Rights Watch proclaimed, “Potential ICC involvement could change the political calculus of those responsible for such violations by sending a clear message that the commission of grave crimes will lead to serious consequences.”

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 Ruth Tenne is an Israeli human rights activist.