The Chamber notes that Palestine acceded to the Statute in accordance with the procedure defined in article 125(3) of the Statute. On 2 January 2015, Palestine submitted its instrument of accession to the Statute, and became a State Party to the ICC on 1 April 2015, following the entry into force of the Statute in its territory.((Situation in the State of Palestine, ICC-01/18-143 05-02-2021, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, 5 February 2021.))
Palestine cannot have it both ways. As a State Party, it cannot expect the ICC to investigate crimes alleged to have been committed against Palestinians by Israel (through the Israeli Defense Forces), yet not be held to account for crimes alleged to have been committed by Hamas against Israelis.
In a February 2021 post – A Pragmatic Assessment of the Pre-Trial Chamber’s Ruling on the ICC’s Territorial Jurisdiction in Palestine: membership comes with privileges, not just responsibilities – I called it as I saw it:
If, as found by the Majority, Palestine is a full member with no restrictions or qualifications, should it not have every right to make a referral to the Prosecutor with every expectation that a preliminary examination be conducted, and, if deemed appropriate, for an investigation to proceed? Put differently, if States Parties had concerns of Palestine’s qualifications to merit the sobriquet “State Party” as defined by the Rome Statute, the time to have denied or circumscribed Palestine’s membership to the ICC club would have been before 1 January 2015, when, under Article 12(3) of the Rome Statute, it accepted the ICC’s jurisdiction over alleged crimes “committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.” To claim now that Palestine, incumbered with the obligations of a State Party is ineligible to be treated as a State Party when seeking redress under the Rome Statute, is facilely inequitable.
I stand by these words. I believed then, as I believe now, that Palestine is an ICC State Party. It makes no difference whether non-state parties recognize Palestine as a state and/or are of the opinion that Palestine did not and does not meet the criteria to become a State Party. Israel and other states balked at the notion that Palestine could request the ICC Office of the Prosecution (OTP) to launch an investigation alleging that Israel had committed crimes under ICC jurisdiction in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014. Whether the alleged crimes were committed remains to be determined; the investigation is ongoing.
While the ICC Pre-Trial Chamber’s decision remains controversial, it cuts both ways. That is the crux of this post.
Palestine has responsibilities just as any other State Party. It too must account for crimes committed by Hamas on and from its territory.((While the Palestinian Authority does not recognize Hamas’s authority in the Gaza Strip, Hamas is the de facto governing authority of the territory.)) Considering that it is unable, and for all intents and purposes unwilling to investigate and prosecute those engaged in crimes under its jurisdiction, which, however viewed, amount to acts of terror, the ICC Prosecutor should, with all deliberate speed, expand his investigation to include Hamas’ crimes. If Palestine has the privilege to seek investigations, it also has the responsibility to cooperate with the OTP in bringing to account those responsible.
Thus far Palestinian officials are mute. And frankly, I had expected a much swifter and thunderous condemnation from ICC Prosecutor Khan – especially given his gift and affinity for public relations, OTP-promotion, and image-building. I had expected to hear as early as Sunday morning the words terror and terrorist coming out of his mouth and unqualifiedly condemning Hamas while putting Palestinian officials on notice for their immediate cooperation. Thankfully, yesterday Mr. Khan issued a statement reminding the parties of the obvious: ICC’s jurisdiction extended to the ongoing events in Israel and Palestine.
Killing and kidnapping (for ransom or future killing) innocent unarmed civilians ranging from infants to elderly, deliberately and with much preparation and premeditation, cannot be justified under any circumstance. These are not acceptable methods and means in waging war – even if the aggrieved side believes it is legitimately justified in initiating the attack. These are acts of terror designed to traumatize and inflict suffering on innocent civilians; to devastate and demoralize the collective psyche of Israelis.
Just as I sympathize with the innocent Palestinians who have been enduring inhumane conditions in Gaza – which, beyond cavil, has effectively been under a state of occupation by Israel, controlling the land, air, and sea, I also sympathize with the innocent Israelis maimed, murdered and kidnapped, for their families and friends, and for the ordinary Israeli who, like all of us, want to live free of fear, free of being attacked by rockets, free of being preyed upon by extremists hellbent on killing for the sake of killing.
The Gaza strip, congested with over two million Palestinians – 40% of whom are under the age of 15 and 63% being food-insecure – has been a tinder box for some time. Fault lies on both sides; but this is not the time to sort out blame. A reaction of some sort from within Gaza was as inevitable as it should have been foreseeable. But not this. Not going after innocent, vulnerable, helpless civilians. Hamas’ aim was terror, plain and simple.
Israel may not wish to have the ICC involved. It certainly made its intentions known in the past, stonewalling the ICC while also challenging its admission of Palestine as a State party, is unsoundly trying to have it both ways.
Aside from not trusting the ICC as a fair, impartial, and legitimate international judicial institution, there may be other concerns. Dealing with Hamas in the Gaza strip will not be clean or easy. We can expect a high number of collateral damage casualties of innocent civilians. Israel does not seem to have any good options – good in the sense of avoiding having to enter the Gaza strip and engage Hamas in densely populated urban areas.
Perversely, Hamas wants Israel to overreact, to show no restraint, to injure and kill as many innocent civilians caught in crossfires, to lay waste to apartment complexes and neighborhoods, to turning Gaza into an apocalyptic sight, like Dresden after being bombed, gratuitously and indiscriminately, by the Allied forces at the end of WWII. Israel should not accommodate. But then should it not attack legitimate military targets? Of course it should – with measure, proportion and restraint.
Thus far, Israel’s pinpoint, targeted attacks have yielded untold numbers of homeless Palestinians. As careful as the Israeli Defense Forces are in selecting targets to adhere to international norms of armed conflict, operations the scale of which are about to unfold in Gaza, are bound to generate copious instances of close call – where on the surface, at least, impressions and conclusions will be drawn militating for investigations and prosecutions of IDF members and possibly high-level Israeli government officials.
Add to this Israel’s total siege of the Gaza strip, cutting off of public utilities such as electricity and water, mobile and internet services, humanitarian assistance and food, and you have the perfect cocktail for potential violations of international humanitarian law on a consequential scale. This is what Israel must avoid. But how?
Israel has every right to defend itself. And when doing so, it does play by the rules, even when others do not. The problem is that once the cycle of revenge starts, once engagement is met with escalation and not de-escalation, finding an off-ramp is as elusive as bringing a conflict of this nature to an end without enormous human suffering on both sides.
As for Palestine, it should embrace the moment and aside from making a full-throated condemnation of Hamas’ actions, it must publicly and vociferously call upon the ICC OTP to fully investigate the crimes committed by Hamas in Israel. And unreservedly cooperate. Fixing blame on Israel for contributing to the suffering of the Palestinians’ suffering in Gaza as a pretextual justification for Hamas’ actions in Israel, will not wash.
About Author
As usual, Mr. Karnavas provides us with thoughtful and incisive remarks regarding international criminal law and its application, in this case, to the horrific terrorist attack on Israel by Hamas. Whether one agrees with his views, or not, his voice is always worth listening to. My thanks go out to him.