Last chance for the ICC to prove itself by investigating Israeli war crimes
THE ICC is being given a last chance to prove it’s capable of dispensing universal justice, as the Palestinian Foreign Minister Riad Malki handed over documents to the court yesterday of Israeli war crimes in Gaza.
If ICC chief prosecutor Fatou Bensouda does not move forward with fully investigating Israeli leaders for war crimes, the body will have proven it lacks all credibility.
The ICC is undoubtedly flawed in that it concentrates almost exclusively on prosecuting Africans, but now it has the opportunity to go outside of Africa and prove itself.
“It will be the last straw for the ICC if it fails to investigate Israeli war crimes in the wake of this week’s UN report on the 2014 Gaza conflict. It will then be understand- able that African countries may choose to withdraw from it,” Professor John Dugard told Independent Media this week.
As the newest signatory to the Rome Statute in April this year, the Palestinians have accepted the jurisdiction of the ICC knowing that some of their own may be prosecuted for war crimes.
Israel, on the other hand, acts as if it is above the law, believing it can whitewash its conduct by following its own investigation into the Gaza conflict. The Israeli report, released days before the UN report, relied exclusively on testimony from the Israel Defense Forces (IDF) and Israeli government officials.
Israel’s ambassador to South Africa, Arthur Lenk, has lambasted the UN report, calling the UN Human Rights Council “a biased organisation which is obsessed with Israel”.
Predictably, the Israeli report absolved the IDF of wrongdoing, and accused Hamas of war crimes. The Israeli report even tried to argue that Israel went above and beyond what was expected of it under the laws of armed conflict.
Few paid much attention to an Israeli report that failed to interview even a single Palestinian about what happened in the Gaza strip in the 50day conflict last year. There were 1 462 Palestinian civilians killed, compared to 6 Israeli civilians.
This makes the report released this week by the UN Human Rights Council on the 2014 Gaza conflict all the more powerful, given that it was based on extensive investigations, and led by prominent and impartial figures.
“We chose Justice Mary McGowan Davis to head the Commission of Inquiry given her independence,” former High Commissioner for Human Rights Navi Pillay told Independent Media this week.
“I was astonished by the findings of the commission which was headed by an American. Once again, a commission of inquiry has pointed to the possibility that war crimes were committed by the Israeli government, which yet again accuses the UN of drafting a biased report.”
The UN report has questioned why Israel had to flatten entire populated areas in Gaza in pursuit of destroying Hamas tunnels.
Pillay highlighted the fact that over her six years as UN High Commissioner for Human Rights, there were three devastating Israeli military operations in Gaza. She described the growing number of reports produced by commissions of inquiry into Israeli crimes that are not discussed or acted upon.
There was the inquiry on Beit Hanoun headed by Archbishop Desmond Tutu in 2006, the commissions of inquiry headed by John Dugard in 2000 and 2006, the commission of inquiry on the Gaza conflict headed by Judge Richard Gold- stone in 2009, and the Commission of Inquiry on the 2014 Gaza conflict.
“The 47 members of the UN Human Rights Council set up these commissions of inquiry. After each of the last three reports on war crimes in Gaza, I called on the General Assembly to discuss the reports and the UNSC to act on them. The US has blocked discussion every time. President Obama refers to America’s special relationship with Israel,” Pillay said.
“My response was that you have to hold your friends to account and abide by international law. The US must be reminded of their commitment to end impunity.”
The likelihood that the UN Security Council will act on the latest UN report is negligible, given that the US has already said the UNSC should not discuss the report. The US was able to prevent a UN Security Council meeting on the Goldstone report, which had also accused Israel of war crimes.
The only recourse then for the Palestinians is to turn to the ICC, which they did this week. How fast the ICC proceeds with its investigations will be an indication of its seriousness in taking up what it previously deemed “sensitive cases”.
Even if the ICC ultimately prosecutes those responsible for war crimes in Gaza, for it to be truly credible, it still needs to be universally ratified. This includes a host of countries which have to date refused to sign the Rome Statute, including the US, Israel, as well as South Africa’s allies in the Brics – Russia, China and India.