Toby Cadman – Barrister-at-law
1. One of the most divisive political issues to be discussed is that of Israel and its occupation of Palestine. It remains a highly volatile and deeply emotive subject that involves consideration of the legality of its occupation, the treatment of civilians that have become almost completely reliant on humanitarian aid and its apartheid policies. More recently the discussions have moved to the commission of war crimes and crimes against humanity during the most recent incursion and the unlawful appropriation of land designated to Palestine in the West Bank and Gaza.
2. The situation has become intolerable and requires a concerted effort to establish a lasting system of peace and stability whilst ensuring that those persons responsible for war crimes and crimes against humanity are held accountable.
3. In order to properly address the issues it is necessary to debunk some myths, or challenge the adopted positions at the outset:
It is not an issue of faith or religion (although there are those that attempt to reduce it to such principles) and therefore it is wholly inappropriate to refer to anyone who criticises Israeli policy as anti-Semitic. Criticism of Israeli policy towards Gaza, or the West Bank is just that, it is criticism of the policy of an occupying state, it is not criticism of the Jewish faith and those that seek to infer that it is are just plainly wrong;
It is accepted that Israel, just as any other State, has the right of self-defence of its territory and its land. However, the steps that we see taken over recent weeks in Gaza are not those of self-defence, it is a military incursion, the laws of war and international humanitarian law must be obeyed, and they quite plainly are not.
Israel denies that they are an occupying force in Gaza, making reference to the fact that their troops were removed some years ago. This may be the case, however, Israel still maintain a blockade around Gaza, nothing goes in or out with approval by Israel and the IDF. This is still an occupation, and just because troops up until recently were not a permanent fixture in the streets of Gaza, does not mean that the occupation has ended.
Israel has effectively ‘stolen’ land from the Palestinians. Citizens have been forced to demolish their own homes or face them being demolished by Israel to make way for Israeli settlements. The UN have ruled quite clearly on this point that such actions are unlawful and yet Israel takes no notice, simply referring to the UN as being biased against them.
It cannot be said that Hamas is blameless as quite clearly it is not. Hamas has a duty to the people of Gaza, and at present I would argue that it is failing in that duty.
4. The highlighted issue at present is the most recent armed incursion into Gaza, and the manner in which Israel has conducted itself.
5. We must consider the basis behind the incursion, the reports of war crimes, and finally, a significant issue at present, whether the ICC should/can commence an investigation into the conflict, as quite clearly, opinion is divided.
II. Reasons behind the Incursion:
6. This does not seem to be discussed at any length if at all. However, it is important as we must look at the mind-set of the Israeli Government, and why it was that air strikes in Gaza were deemed appropriate.
7. It is accepted that tensions had been simmering for some time, and again, this is nothing new.
8. The catalyst however was the appalling kidnapping and then murder of three Israeli teenagers who were walking in the West Bank. It must be clear that this act was wholly indefensible and those responsible should be prosecuted under the appropriate law.
9. However, for the Head of State to appear on television placing responsibility with Hamas and threatening them, before anyone had been arrested or charged was clearly not the way to proceed. To then order the destruction of the homes of those who had been accused is wholly inappropriate, unlawful, and would evidently inflame those already heightened tensions.
10. It was this kidnapping that provided the catalyst in the escalation of hostilities, which brought about airstrikes and an armed incursion resulting in the death of more than 2,000 civilians.
III. Were Crimes Committed
11. The easy answer to this question is yes. There cannot really be any doubt that the certain armaments used, and the strikes themselves were outside the limits of international humanitarian law, and therefore constitute war crimes and/or crimes against humanity.
12. The mantra adopted by the Israeli Government that the IDF is the most moral army in the world, and that warnings were delivered before targets were destroyed and thus this absolves them of all responsibility. This is false.
13. The accusation that Hamas based some of its rocket launchers in civilian areas does not give Israel carte blanche to target civilian areas.
14. The fact that UN buildings may have discovered rocket stores does not mean that they are a legitimate military target.
15. Gaza is one of the most populous areas on the planet; it is under blockade with no escape via the sea, and little chance of escape by land given that Israel controls many of the border crossings. The people of Gaza are hemmed in.
16. Schools have been targeted and destroyed, multi-story housing has been targeted and destroyed, and the only power station in Gaza was destroyed. These are not legitimate military targets.
17. It we are to believe that the IDF is the most moral army in the world, how is it that it uses munitions that kill indiscriminately, such as flechettes shells? How is that out of the over 2000 that have been killed, over 70 % have been civilians, and over 400 have been children.
18. How is that a beach where children were playing football was deemed to be a legitimate military target.
19. The fact remains that there is clearly enough evidence at this stage to justify an investigation into whether war crimes were committed, and in making this statement, we must be clear that the investigation should not be one sided, it must also investigate Hamas, and whether they in turn also committed such crimes. It is clear that indiscriminate rocket attacks may well be seen as such crimes.
20. It is also appropriate to make a through investigation so as to either confirm or debunk the oft relied upon statement that the reason the civilian casualties are so high, is because Hamas uses civilians as human shields. It should be noted that a previous UN Report concluded that there was no evidence to suggest that this was correct.
21. We should keep in mind however that the UN has disclosed that they have discovered weapons hidden in their buildings in Gaza, this in itself may constitute a crime, and again I reiterate the earlier point, that any such investigation into the conflict must look at both sides with equal vigour, however, it is clear that such an investigation is warranted.
V. Should/Can the ICC Investigate
22. There has been significant comment of late that the ICC prosecutor will come under significant pressure not to commence an investigation with Israel enlisting the help of the US to lobby. The basis of this pressure (aside from the inferred fear of actions being considered) is that there is suggestion from some parties, including the US and the UK that any attempt to instigate an investigation will derail the peace process.
23. This has also been used as justification as to why Palestine should not become a state party to the Rome Treaty.
24. It is appalling that the issue of justice for the undoubted victims of the conflict is being used a political tool.
25. Access to justice is not something to be used a political tool; it should be an absolute right of every citizen.
26. To suggest that it will derail the peace process makes a mockery of the US and UK’s position on global justice and accountability.
27. This does however gloss over the fact that in reality there is no peace process and hasn’t been for a significant number of years. There have been numerous discussions over the years however they have achieved nothing.
There is still the blockade of Gaza
Unlawful settlements are still being built on Palestinian land
There is no right of return for the Palestinian people
Palestinians are treated as second-class citizens.
28. There has been no movement for decades on these points. One must ask therefore what has the so-called peace process actually achieved? It has achieved nothing.
29. There appears therefore no good reason (aside from the fear on the part of Israel, the US, and the UK as to what an investigation may conclude), for Palestine not to become a state party to the Rome Treaty.
30. This leads us to the question of whether the ICC can commence an investigation, and it is a question to which there appears to be no definitive answer, only substantial opinion, albeit opinion by eminent professionals and academics on either side.
31. The UK Bar Human Rights Committee in a recent widely published letter to the ICC argued that there was no issue of jurisdiction and that a previous declaration of Palestine as an Observer State was enough, given that there had already been a previous ruling before this on jurisdiction.
32. The argument seems to be that following the rejection of 2009 the then chief prosecutor suggested that there was no power to investigate at that stage given the status of Palestine as a state or otherwise, but, by virtue of UNGA Res. 67.19 (which upgraded Palestine to non-member state status) the ICC now has jurisdiction. However, in order to be correct, this resolution must have granted retrospective statehood on the basis that when Palestine did make an application in 2009 they were not a state.
33. Kirsty Brimelow QC of Doughty Street Chambers, London, UK, and other eminent practitioners and academics differ on this point of view (although it is supported by Mr. Kevin Jon Heller). Their recent letter to the ICC urges them to investigate potential crimes committed, and suggests that there is no question of jurisdiction.
34. Ms. Brimelow QC, writing in the Guardian Newspaper, cites the prosecutor decision of 2009 and notes in particular that the prosecutor “could in the future consider allegations of crimes committed in Palestine, should competence organs of the Untied Nations or eventually the assembly of states parties resolve the legal issue relevant to an assessment of article 12”.
35. It is this statement that has caused the discussion in that the BHRC suggests this statement recognises that once statehood has been recognised then there is jurisdiction for the ICC to investigate on the basis of the previous application.
36. As noted earlier, I must respectfully disagree with this premise.
37. I accept an entirely that on the basis that Palestine has been granted non-member state status, there is in theory no bar to Palestine becoming a state party to the Rome Treaty, however, any investigation into the most recent conflict must follow from a separate request/referral by Palestine (which will involve acceptance of the Rome Treaty). I cannot see how the 2009 request can now be applied retrospectively.
38. In one sense however it is somewhat of a purely academic argument, in that as there is now no bar to signing the Rome Treaty, all it would take is for Mahmoud Abbas to communicate with the ICC.
39. It is here however that separate problems have been identified.
40. As noted above, pressure has already been placed on Palestine by both the UK and particularly the US that joining of the ICC will derail the peace process – of which we note that there is no such process. So, the question is, why hasn’t the Rome Treaty been signed and the ICC requested to investigate?
41. Hamas have confirmed publically that they support a referral to the ICC in the knowledge that it would cause their own actions to be subject to investigation. So why hasn’t Abbas signed the treaty and made the relevant request?
42. My own particular theory is that he will seek to use it as a negotiating tool. Numerous press statement have made clear recently that Palestine is set to sign the treaty, so, the only thing to prevent the signing is the actions of Israel i.e. If Israel were to grant some of the requests being made of them at the negotiating table, it may be that the Rome Treaty is not signed on the basis that it may be felt that the end of the blockade, the end of settlement building etc. may well be more preferable to the people of Palestine than the prosecution of potential defendants on both sides. As noted, this is only my theory, however I cannot see any other justification for not signing the treaty.
43. If we assume that the declared intention will be followed, and that the Rome Treaty will be signed, a further set of problems arise, those alluded too at the outset of this paper. Those problems being the potential for pressure being brought on the prosecutor not to investigate allegations arising out of the conflict.
44. It is disappointing that we even have to raise this as being a foreseeable problem as given that the countries involved hold themselves to be at the very forefront of global justice, accountability and the recognition of human rights, they deem it appropriate to use justice as a political tool. Such actions, should they happen, contradict everything that any democracy stands for.
45. The position appears to be quite clear. Even without this most recent incursion, Israel have arguably committed international crimes by its continued subjugation of the people of Gaza, and of the West Bank.
46. It is also quite clear that as much as we cannot say for certain that crimes against humanity/war crimes have been committed, as this is matter for a judicial body, there is clear evidence that an investigation is warranted given the clear events of recent weeks.
47. On the subject of the ICC, it is submitted that the ICC does not have authority/jurisdiction as yet, however that is simply resolved by the signing of the Rome Statute.
48. Unfortunately however although the above appears at first glance very straightforward, there are substantial political issues still to be resolved. The UK and the US need to urgently and drastically re-visit their policy towards Israel and the occupied territories and not simply rehearse the same rhetoric that has been quoted for decades.
49. Yes, Israel does have the right to defend itself, however what we have seen of late goes so far and away beyond self-defence it is no longer recognisable as a lawful justified course of action.
*Avrasya Hukuk Kurultayı Tebliğler Kitabı; s.238 (3-7 Eylül 2014, Saraybosna)