Palestine's recourse to the ICC

© Sergey Ponomarev/NY Times

The bodies of members of the Abu Jamei family killed in an Israeli airstrike in Gaza Strip, July 21, 2014.

Where, in this post 9/11 world, are war criminals to be held ?

Not in the United States, where a Senate report on CIA torture has failed to indict the initiators and implementers, despite "harsh interrogation" techniques that included sleep deprivation, sexual humiliation, rectal feeding (rape) and waterboarding, and where the painful force-feeding of hunger strikers at the Guantánamo prison continues unabated.

Not in Israel, where its indiscriminate attacks on UN schools, public buildings and private residences in Gaza last July killed more than 1,500 civilians (including 500 children), and where the country's leaders have justified such carnage as an appropriate response to Hamas rockets that killed five Israeli civilians (including one child).

So it's not surprising that both the United States and Israel have condemned Palestine's decision to join the International Criminal Court (as the 123rd member) and deplore the recent decision of the ICC prosecutor to investigate possible war crimes by both Israel and Palestinian members of Hamas.

According to The of January 17, the Israeli foreign minister, Avigdor Lieberman, called the action of the court's chief prosecutor, Fatou Bensouda, "inflammatory" and said he would oppose Israeli cooperation with the inquiry and would call for disbandment of the court. The US State Department weighed in on the side of Israel, arguing that since the Palestinians do not have their own state they were ineligible to join the court.

Recognizing Palestine as a state, the UN General Assembly voted overwhelmingly on November 29, 2012, to accord Palestine "non-member observer status in the UN." Only the United States and eight other governments voted against it. As a UN observer state, Palestine signed the Rome Statute on January 1, 2015, a day after a UN resolution mandating Israeli withdrawal from the West Bank failed to pass at the Security Council. As a result, Palestine will formally become a member of the ICC on April 1, 2015.

Maintaining that Palestine's recourse to the ICC is an abandonment of its peace process negotiations with Israel, both the Netanyahu government and the United States have begun or threatened retaliation. Their argument that recourse to international organizations will derail the peace process and sabotage hopes for a two-state solution is disingenuous, given the decades of failed negotiations.

Israel is already withholding the monthly transfer of some $120 million in tax revenues it collects for Palestine while the United States is threatening to withdraw its $400 million in Palestinian aid. Since those funds pay the salaries of government officials in the West Bank and Gaza, including those of security forces that cooperate with Israel, survival of the governing Palestinian Authority is at stake.

If the Palestinian Authority should collapse, the Netanyahu government would find itself responsible for administering 4.4 million new inhabitants (bringing Israel's Arab population to a near par with Israeli Jews). Beyond the financial and social costs would be the issue of Israeli democracy. Could it withstand likely increased international pressure to respect Palestinian rights? Such realities may yet give decision makers pause.

Meanwhile, the ICC prosecutor must determine whether Israeli and Palestinian acts during the Gaza war amounted to "war crimes," defined in the Rome Statute of the International Criminal Court to include: willful killing, extensive destruction of property "not justified by military necessity," and intentionally directing attacks against the civilian population or against civilian objects.

The Rome Statute, Article 8.2(b) (iv) includes as a war crime: "Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated." Such language seems to describe IDF attacks on Palestinian civilians and Hamas rocket attacks on Israeli border towns.

If Palestine's recourse to the ICC should succeed in holding the perpetrators of war crimes accountable, it could reverse this century's current pattern of impunity. And who knows? The sight of accused Israelis on trial at The Hague might even encourage the United States to hold accountable its own torturers and their sponsors.

Chomsky: We Are All – Fill in the Blank.

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