Hague court under western pressure not to open Gaza war crimes inquiry

The international criminal court has persistently avoided opening an investigation into alleged war crimesin Gaza as a result of US and other western pressure, former court officials and lawyers claim.

Fatou Bensouda, the international criminal court prosecutor

In recent days, a potential ICC investigation into the actions of both the Israel Defence Forces and Hamas in Gaza has become a fraught political battlefield and a key negotiating issue at ceasefire talks in Cairo. But the question of whether the ICC could or should mount an investigation has also divided the Hague-based court itself.

An ICC investigation could have a far-reaching impact. It would not just examine alleged war crimes by the Israeli military, Hamas and other Islamist militants in the course of recent fighting in Gaza that left about 2,000 people dead, including women and children. It could also address the issue of Israeli settlements in the Palestinian territories, for which the Israeli leadership would be responsible.

The ICC’s founding charter, the 1998 Rome statute (pdf), describes as a war crime “the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies”.

Also at stake is the future of the ICC itself, an experiment in international justice that occupies a fragile position with no superpower backing. Russia, China and India have refused to sign up to it. The US and Israel signed the accord in 2000 but later withdrew.

Some international lawyers argue that by trying to duck an investigation, the ICC is not living up to the ideals expressed in the Rome statute that “the most serious crimes of concern to the international community as a whole must not go unpunished”.

John Dugard, a professor of international law at the University of Leiden, in the Netherlands, and a longstanding critic of Israel’s human rights record, said: “I think the prosecutor could easily exercise jurisdiction. Law is a choice. There are competing legal arguments, but she should look at the preamble to the ICC statute which says the purpose of the court is to prevent impunity.”

In an exchange of letters in the last few days, lawyers for the Palestinians have insisted that the ICC prosecutor, Fatou Bensouda, has all the legal authority she needs to launch an investigation, based on a Palestinian request in 2009. However, Bensouda is insisting on a new Palestinian declaration, which would require achieving elusive consensus among political factions such as Hamas, who would face scrutiny themselves alongside the Israeli government. There is strong US and Israeli pressure on the Palestinian leader, Mahmoud Abbas, not to pursue an ICC investigation.

Western pressure on the ICC to stay away from the issue has caused deep rifts within the prosecutor’s office. Some former officials say the Palestinians were misled in 2009 into thinking their request for a war crimes investigation – in the wake of an earlier Israeli offensive on Gaza, named Cast Lead – would remain open pending confirmation of statehood. That confirmation came in November 2012 when the UN general assembly (UNGA) voted to award Palestine the status of non-member observer state, but no investigation was launched.

Bensouda initially appeared open to reviewing the standing Palestinian request, but the following year issued a controversial statement (pdf) saying the UNGA vote made no difference to the “legal invalidity” of the 2009 request.

Luis Moreno Ocampo, who was prosecutor at the time of the Palestinian 2009 declaration, backed Bensouda, saying in an email to the Guardian: “If Palestine wants to accept jurisdiction, it has to submit a new declaration.”

But another former official from the ICC prosecutor’s office who dealt with the Palestinian declaration strongly disagreed. “They are trying to hiding behind legal jargon to disguise what is a political decision, to rule out competence and not get involved,” the official said.

Dugard said Bensouda was under heavy pressure from the US and its European allies. “For her it’s a hard choice and she’s not prepared to make it,” he argued. “But this affects the credibility of the ICC. Africans complain that she doesn’t hesitate to open an investigation on their continent.”

Moreno Ocampo took three years to make a decision on the status of the 2009 Palestinian request for an investigation, during which time he was lobbied by the US and Israel to keep away. According to a book on the ICC published this year, American officials warned the prosecutor that the future of the court was in the balance.

According to the book, Rough Justice: the International Criminal Court in a World of Power Politics, by David Bosco, the Americans suggested that a Palestine investigation “might be too much political weight for the institution to bear. They made clear that proceeding with the case would be a major blow to the institution.”

Although the US does not provide funding for the ICC, “Washington’s enormous diplomatic, economic and military power can be a huge boon for the court when it periodically deployed in support of the court’s work,” writes Bosco, an assistant professor of international politics at American University.

In his book, Bosco reports that Israeli officials held several unpublicised meetings with Moreno Ocampo in The Hague, including a dinner at the Israeli ambassador’s residence, to lobby against an investigation.

A former ICC official who was involved in the Palestinian dossier said: “It was clear from the beginning that Moreno Ocampo did not want to get involved. He said that the Palestinians were not really willing to launch the investigation, but it was clear they were serious. They sent a delegation with two ministers and supporting lawyers in August 2010 who stayed for two days to discuss their request. But Moreno Ocampo was aware that any involvement would spoil his efforts to get closer to the US.”

Moreno Ocampo denied that he had been influenced by US pressure. “I was very firm on treating this issue impartially, but at the same time respecting the legal limits,” he said in an email on Sunday. “I heard all the arguments. I received different Oxford professors who were explaining the different and many times opposing arguments, and I concluded that the process should … go first to the UN. They should decide what entity should be considered a state.”

He added: “Palestine was using the threat to accept jurisdiction to negotiate with Israel. Someone said that if you have nine enemies surrounding you and one bullet, you don’t shoot, you try to use your bullet to create leverage.”

A spokeswoman for his successor, Fatou Bensouda, rejected allegations of bias in the prosecutor’s choice of investigations. “The ICC is guided by the Rome statute and nothing else,” she said. “Strict rules about jurisdiction, about where and when ICC can intervene should be not be deliberately misrepresented … Geographical and political consideration will thus never form part of any decision making by the office.”

The French lawyer representing the Palestinians, Gilles Devers, argued that it was for the court’s preliminary chamber, not the ICC’s prosecutor, to decide on the court’s jurisdiction in the Palestinian territories. Devers said negotiations were continuing among the Palestinian parties on whether to file a new request for an investigation, even though he believed it to be unnecessary in legal terms. Ultimately, he said, the outcome would be determinedly politically.

“There is enormous pressure not to proceed with an investigation. This pressure has been exerted on Fatah and Hamas, but also on the office of the prosecutor,” Devers said. “In both cases, it takes the form of threats to the financial subsidies, to Palestine and to the international criminal court.”

Among the biggest contributors to the ICC budget are the UK and France, which have both sought to persuade the Palestinians to forego a war crimes investigation. More

 

The cruel cease-fire charade

So far, the diplomatic effort to end the violence in Gaza has failed miserably, with Israel on Friday rejecting a cease-fire proposal from U.S. Secretary of State John Kerry. (On Saturday Israel and Hamas agreed to a 12-hour humanitarian pause in the fighting brokered by the United Nations.)

Washington’s attempt is representative of the overall failure of American policy toward the Israeli-Palestinian conflict, only on this occasion the consequences can be measured in the growing pile of dead bodies and the widespread devastation that includes numerous homes, public buildings and even artillery damage to several United Nations schools sheltering Palestinian civilians.

The U.S. approach fails because it exhibits extreme partisanship in a setting where trust, credibility and reciprocity are crucial. Kerry is undoubtedly dedicated to achieving a cease-fire, just as he demonstrated for most of the past year in pushing for a negotiated peace agreement between Israel and the Palestinian Authority. Yet the United States exhibited its tendency toward extreme partisanship when it designated Martin Indyk, a former staff member of the America Israel Public Affairs Committee (AIPAC) and former ambassador to Israel, as the U.S. special envoy to the peace talks.

The U.S. approach up to this point to achieving a cease-fire in Gaza has been undertaken in a manner that is either woefully ignorant of the real constraints or callously cynical about their relevance. This is especially clear from the attempt to garner a cease-fire by consulting only one side, Israel — the party bearing the major responsibility for causing massive casualties and damage — and leaving Hamas out in the cold. Even if this is a consequence of Hamas being treated as “a terrorist entity,” it still makes no sense. When Israel wanted to deal with Hamas in the past, it had no trouble doing so — for instance, when it arranged the prisoner exchange that led to the release of the single captured Israeli soldier Gilad Schalit back in 2011.

The basic facts are astounding: The U.S. relied on Egypt as the broker of a proposal it vetted, supposedly with the text delivered personally by Tony Blair to President Abdel Fattah El Sisi in Cairo, endorsed by the Netanyahu government, and then announced on July 15 via the media as a cease-fire proposal accepted by Israel, without Hamas even knowing the details. It’s a diplomatic analogue to the theater of the absurd. Last July, then-General Sisi was the Egyptian mastermind of a coup that brutally cracked down on the Muslim Brotherhood and criminalized the entire organization. The Sisi government has made no secret of its unrelenting hostility to Hamas, which it views as an offshoot of the Muslim Brotherhood. It destroyed the extensive tunnel network connecting Gaza with the outside world to circumvent the punitive Israeli blockade that has been maintained since 2007. Is there any reason for Hamas to go forward with such a cease-fire arrangement? As some respected Israeli commentators have suggested, most prominently Amira Hass, the “normalization” of the occupation is what the Israeli military operation Protective Edge is all about. Hass suggests that Israel seeks a compliant Palestinian response to an occupation that has for all intents and purposes become permanent. Such periodic shows of force aim to break once and for all the will to resist, associated with Hamas and its rockets.

Even more telling, the cease-fire’s terms were communicated to Hamas via the media, making the proposal “take it or leave it.” It also ignored the reasonable conditions Hamas had posited as the basis of a cease-fire it could accept. These conditions included ending the unlawful seven-year siege of Gaza, releasing prisoners arrested in the anti-Hamas campaign prior to launching the military operation on July 8, and stopping interference with the unity government that brought Hamas and the Palestinian Authority together on June 3. Kerry, by contrast, has urged restoring the cease-fire text that had been accepted by both sides in November 2012 after the previous major Israeli military attack upon Gaza.

Hamas’ chief leader, Khaled Meshaal, has been called “defiant” by Kerry because he would not go along with this tilted diplomacy. “Everyone wanted us to accept a cease-fire and then negotiate for our rights,” Meshaal said. This was tried by Hamas in 2012 and didn’t work. As soon as the violence ceased, Israel refused to follow through on the cease-fire agreement that had promised negotiations seeking an end of the blockade and an immediate expansion of Gazan fishing rights.

In the aftermath of Protective Edge is it not reasonable, even mandatory, for Hamas to demand a firm commitment to end the siege of Gaza? Israel as the occupying power has an obligation under the Geneva Conventions to protect the civilian population of an occupied people. Israel claims that its “disengagement” in 2005, involving the withdrawal of security forces and the dismantling of settlements, ended such obligations. Such a position is almost uniformly rejected in the international community, since the persistence of effective Israeli control of entry and exit, as well as air and sea, and violent incursions amounts to a shift in the form of occupation — not its end. Israel is certainly right to complain about the rockets, but it is wrong to impose an oppressive regime of collective punishment on the civilians of Gaza. More