Criminalizing Israel’s right to self-defense in Gaza - analysis

Until the ICC formally drops the matter, just the specter of possible ICC prosecution gives additional weight to any UN activity or report that speaks to war crimes.

By
July 8, 2019 02:06
2 minute read.
Palestinians take part in a rally marking the 31st anniversary of Hamas' founding, in Gaza City

Palestinians take part in a rally marking the 31st anniversary of Hamas' founding, in Gaza City. (photo credit: IBRAHEEM ABU MUSTAFA / REUTERS)

The question of the criminalization of IDF action is at the heart of much of the Palestinian diplomatic activity at the United Nations.

At issue is the question of whether Israeli military activity against the Palestinians, particularly in Gaza, can be constituted as self-defense, and if Israel has the right to take such military action.

From the start of the Gaza conflict with Hamas, the Palestinians sought to lay the groundwork to charge IDF soldiers with war crimes. After the Gaza War in the winter of 2007-2008 named Operation Cast Lead, the Palestinian Authority pushed for passage of the infamous Goldstone report at the United Nations Human Rights Council.

The report accused both Israel and Hamas terrorists of war crimes, but in spite of the furor it caused, it had little pragmatic impact because the PA had no way to bring it before the International Criminal Court. Nor could the PA hold Israel liable before the court for the second Gaza War, Operation Pillar of Defense, in 2012.

But in the aftermath of that war, the UN recognized Palestine that year as a non-member state. That status allowed it to sign the Rome Statute in 2015, a move that made it a party to the ICC. In 2018, the PA formally asked the chief prosecutor Fatou Bensouda to investigate the “situation in Palestine” as of June 13, 2014.

It was a request that transferred the 2014 Gaza War, known as Operation Protective Edge, into the first conflict for which Israeli soldiers can be held liable before the ICC for war crimes.

Bensouda has yet to rule on whether the ICC will pursue action against Israel. But in October 2018, she issued a stern warning to both Israel and Hamas that she was still investigating the matter.

But until the ICC formally drops the matter, just the specter of possible ICC prosecution gives additional weight to any UN activity or report that speaks to war crimes.

At issue would be a 200 page 2015 UNHRC report already stating that both Israel and Hamas may have committed war crimes during Operation Protective Edge.

But Israel no longer needs to launch a war to get into trouble with the ICC over Gaza. More significant than the 2014 war is the Hamas led March of Return, which began on March 30, 2018. IDF response to its violent riots along the southern border, including the launching of incendiary devices, prompted the UNHRC to approve a 252-page report accusing Israel of war crimes. It also approved the creation of a secret dossier on Israelis whom it believes have committed war crimes on the Gaza border. It wants that dossier to be passed to the ICC.

It is unclear if the ICC will pursue or drop the PA’s claim against Israel. But the very threat of it gives teeth to persistent UN activity against Israel on Gaza. And should the ICC move forward, it will have an ever accumulating wealth of material on which to draw to pursue such a claim.


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