17 Dec 2022 – Nearly two years have passed since the International Criminal Court (ICC) began investigating war crimes committed in the occupied West Bank, including East Jerusalem, and Gaza. But the ICC has yet to take concrete steps to move the investigation forward.Frustrated with the glacial pace of the ICC’s investigation and the lack of clarity about how and when the investigation will proceed, three Palestinian human rights organizations issued a joint statement to the Assembly of States Parties to the Rome Statute (the management body of the ICC) on December 6, saying, “We have not seen any concrete step in this investigation, no action by the Prosecutor to break the vicious cycle of impunity.”

They added, “The situation on the ground is deteriorating year after year, month after month, day after day. We feel that we have been left alone in our struggle. And Palestinian victims are losing hope.”

The initial news of the ICC investigation came on March 3, 2021, when Fatou Bensouda, then-chief prosecutor of the International Criminal Court (ICC), announced the opening of a formal investigation into war crimes committed in the West Bank, including East Jerusalem, and the Gaza Strip, during and since Israel’s 2014 “Operation Protective Edge,” which killed 2,251 Palestinians.

Following a five-year preliminary examination, Bensouda found a reasonable basis to believe that Israeli forces had committed the war crimes of willful killing, willfully causing serious injury, disproportionate use of force, and transfer of Israelis into Palestinian territory. Bensouda also found there was a reasonable basis to investigate possible war crimes by Palestinians, including intentional attacks against civilians, using civilians as human shields, and torture and willful killing.

The three Palestinian human rights organizations that issued a joint statement this month to raise concerns about the lack of progress in the ICC investigation are the Palestinian Centre for Human Rights (a group that protects human rights and promotes the rule of law in accordance with international standards), Al-Mezan Center for Human Rights (a group that protects human rights, especially economic, social and cultural rights, in the occupied Palestinian territory) and Al-Haq (which documents human rights violations in the occupied Palestinian territory). “In 2021, the opening of an investigation by the Prosecutor was perceived as a huge leap forward,” the groups wrote in their joint statement. “After years of frustration, we hoped that it was the start of a new era of accountability for the grave crimes committed in occupied Palestine.”

This year alone, the three groups added, more than 200 Palestinians, including many children, were “killed by Israel’s settler-colonial regime in the West Bank and Gaza Strip.” They also noted that beloved Palestinian Al-Jazeera journalist Shireen Abu Akleh “was assassinated in cold blood by an Israeli sniper in broad daylight.” And six prominent Palestinian civil society organizations, including Al-Haq, were shut down after being falsely designated as “terrorist organizations.”

In spite of these events, the three organizations wrote, the ICC’s Office of the Prosecutor hasn’t issued a single statement concerning Palestine. They contrasted the ICC prosecutor’s inaction on Palestine with the situation of Ukraine, about which the Office of the Prosecutor has been very proactive. “It is also crucial that the same level of attention, activity, and resources is applied to other situations including, Palestine, to avoid perceptions of selectivity and politicization,” the groups wrote. “Victims should not be competing for justice and double standards should not have a place in justice.”

On November 21, Bezalel Smotrich, head of Israel’s far right Religious Zionism Party, called Palestinian human rights organizations an existential threat to Israel. He said that the incoming Israeli government must take legal and security measures against them including “seizing their funds.”

Two days later, 198 Palestinian, regional and international civil society organizations (CSOs) — including the National Lawyers Guild, Center for Constitutional Rights, Amnesty International, Human Rights Watch and International Association of Democratic Lawyers — wrote an open letter to Chief ICC Prosecutor Karim Khan, decrying “missed opportunities for preventive statements in the past year.” The CSOs cited Israel’s killing of Palestinians “without clear provocation” as well as raids and assaults against worshipers at the Al Aqsa Mosque and Al-Haram Al-Sharif in occupied East Jerusalem.

Three of the six designated “terrorist organizations,” the CSOs noted, have been providing the ICC prosecutor’s office with information about “alleged serious crimes committed by Israeli nationals within the jurisdiction of the Court.” The CSOs cited the Apartheid Convention, which lists as an “inhuman act” of apartheid, the “persecution of organizations and persons by depriving them of fundamental rights and freedoms, because they oppose apartheid.”

The CSOs wrote to the ICC prosecutor, “Although Israel’s targeting of these organisations could hinder the work of the ICC, there has been no public reaction by your office.” The CSOs urged the Office of the Prosecutor to:

1. Publicly condemn and call on Israel to rescind the terrorist designations;
2. Publicly affirm that the Office of the Prosecutor will scrutinize Israel’s crimes during its unprovoked military offensive in August 2022;
3. Urgently expedite the ICC investigation into the Situation of Palestine, including the crimes against humanity of apartheid and persecution; and
4. Issue preventive statements to deter Israel’s crimes against humanity and war crimes.

Prime Minister-designate Benjamin Netanyahu is assembling “Israel’s most extreme right-wing government to date,” attorney Diana Buttu, former adviser to the negotiating team of the Palestine Liberation Organization, wrote in an op-ed in The New York Times. Netanyahu’s government will likely be receptive to Smotrich’s suggestion to persecute Palestinian human rights organizations even more severely than the prior government that designated them “terrorist” and shut down their offices.

Moreover, the chief enabler of Israel’s illegal occupation of Palestinian territory, the U.S. government — which annually provides Israel with $3.8 billion in military aid — is implicitly exerting pressure on Khan to drag his feet on the ICC investigation of Israeli crimes.

When U.S. President Joe Biden visited Jerusalem in July, he and Israeli Prime Minister Yair Lapid concluded an agreement affirming they would “continue to work together to combat all efforts . . . to unfairly single [Israel] out in any forum including at the United Nations or the International Criminal Court.”

Although the United States refuses to join the ICC, it has consistently tried to undermine it, expressing “serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel.”

But on March 15, 100 U.S. senators (who find it difficult to agree on anything) unanimously passed SR 546, which “encourages member states to petition the ICC or other appropriate international tribunal to take any appropriate steps to investigate war crimes and crimes against humanity committed by the Russian Armed Forces.”

To Palestinians and their allies, U.S. hypocrisy is palpable. The United States selectively criticizes some countries (such as Russia and China) for their human rights violations but pointedly ignores Israel’s illegal occupation of Palestinian territory and its commission of war crimes and crimes against humanity against the Palestinian people.

Opponents of Israel’s crimes should register their strong opposition to the United States’ enabling of Israel’s oppression of the Palestinians — both to their congress members and to the White House. As long as the U.S. government receives no significant pushback, it will continue to facilitate Israel’s illegal occupation and violate the human rights of the Palestinian people. People can also join the Boycott, Divestment, Sanctions movement to end international support for Israel’s oppression of Palestinians and pressure Israel to comply with international law.

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense, Veterans For Peace, and the Bureau of the International Association of Democratic Lawyers. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” radio.

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