The acid test for international justice

As of today, 1,814 Palestinians have been killed by Israeli forces.  Almost a quarter of the dead are children.  The Israeli military has targeted schools, hospitals and civilian homes in Gaza. Overall the picture is one of carnage and collective punishment against Palestinians. It is an atrocity. An atrocity that led Baroness Warsi to resign as Foreign Office Minister yesterday after stating that the British government’s “approach and language during the current crisis in Gaza is morally indefensible”.

After a four-week conflict, a 72-hour humanitarian truce is holding in Gaza. John Kerry has urged Israel and Palestine to take this opportunity to enter into fresh peace talks. Over the last few months peace talks have been ongoing between both sides, and it even appeared that a two state solution was in reach. Palestine took bold steps to form a Unity government between Hamas and Fatah that was recognised and supported by the US and the EU.

The new government did not contain a single Hamas member. Hamas even agreed to allow Fatah to move several thousand of its security forces back into Gaza. It also agreed to the Palestinian Authority’s policy of non-violence and importantly the recognition of Israel. This indicated the Unity Government’s commitment to reaching agreement with Israel.

But peace talks soon ground to a halt after the kidnap and murder of three Israeli students in the West Bank in June. Israel blamed Hamas. However, no credible evidence exists to show Hamas’s involvement. Israeli military sources now say that all the evidence points to a lone cell. What followed was the largest West Bank campaign against Hamas since the Second Intifada.

Hundreds of Palestinians were arrested including more than fifty of the prisoners released in 2011 in exchange for Gilad Shalit, an Israeli soldier captured by Hamas in 2006. Non-Hamas factions responded by firing missiles into Israel. Israel’s retaliation on the 6 July killed several members of Hamas. The next day Hamas started launching rockets into Israel. As the violence escalated the Israel Defense Forces announced Operation Protective Edge on 8 July.

The scale of the offensive has shocked the world. Last Sunday another 10 people were killed after Israelis attacked a UN school. The United Nations Secretary General Ban Ki-moon called for those responsible for the “gross violation of international law” to be brought to justice. David Cameron has condemned Israel’s actions, warning that it is “wrong and illegal” to target civilians. The nature of Israeli’s military intervention form the basis of a criminal prosecution for war crimes in the International Criminal Court (ICC) in the Hague.

Last Friday the practicalities of mounting such a case were discussed among international human rights lawyers at Mansfield Chambers in London. The urgency of considering this possible legal remedy stems from the fact that a previous Palestinian referral of Israel to the ICC failed in 2009.  Following the Operation Cast Lead, the ICC prosecutor refused to accept jurisdiction as Palestine was not considered a state.  However, since then there have been significant developments.

In November 2012, the UN General Assembly voted to accord Palestine in the West Bank, Gaza and east Jerusalem, land Israel seized in 1967, non-member observer state status. In the past year Palestinian president, Mahmoud Abbas has signed 15 international treaties and conventions signifying Palestine as a state in its own right.

As a recognised state Palestine now has the option of signing up to the Rome statute thereby becoming a member of the ICC. Once Palestine is a member of the ICC it can request the ICC prosecutor investigate war crimes committed on its territory by Israel. Under international humanitarian law, there have been many incidents, which could constitute serious international crime.

Such crimes include reliance on excessive force, population transfers following the settlements, and maintenance of the separation wall in the West Bank. As Israel has not signed up to the Rome statute of the ICC, Israel could not bring charges against Hamas for the rockets fired at Israeli civilians.

An alternative route for the ICC to intervene is for the UN Security Council to refer the matter to the ICC. This is unlikely given that members of the Security Council who are allies of Israel such as the US and Britain are likely to block such a referral. After all the US has been totally opposed to any accession by Palestine to the ICC.

Nevertheless ICC intervention is supported by a consensus of human rights organisations, which have made strong representations to President Abbas to refer the matter to the ICC. A finding against Israel by the ICC would send a clear message that Israel cannot continue to transgress international human rights with impunity.

However, President Abbas will be subject to increasing international pressure from the US, Britain and France who strongly advocate that peace negotiations would be undermined by pursuing prosecutions for war crimes. Despite the efforts of many within the international community, attempts to broker peace between Israel and Palestine have failed.

Peace negotiations failed for a multitude of reasons including Israel establishing around 11,000 housing units in settlements; the arrest of 2,702 Palestinians and the killing of 52 Palestinians; 3,360 military raids on Palestinians and; Prime Minister Benjamin Netanyahu’s new pre-condition as of January this year that Palestine must recognise Israel as a Jewish state.

The majority of Israelis and Palestinians are keen for peace talks to resume. A poll in June this year shows that 62% of Israelis and 54% of Palestinians support a two-state solution. We need active dialogue between both sides. After all there are many Israelis who form an active part of the movement for peace in the region. Some of the bravest people opposing the devastation of Gaza are Israeli human rights activists.

Condemnation of Israel’s bloodshed in Israel is increasing among its own people. Over 5,000 Israelis took to the streets of Tel Aviv on Saturday 26 July 2014 to protest against Operation Protective edge. Many denounced the Israel Defense Forces (IDF) and called on people to refuse to serve.

Meanwhile Israeli human rights organisations have publicly decried the government’s actions. Collectively Israeli human rights organisations wrote a letter to the Attorney General of Israel, Yehuda Weinstein, raising questions about the legality of the conduct of the IDF in Israel and its commanders, and specifically the violation of basic principles of the law of war.

In a report commissioned by the UN following Operation Cast Lead, the UN’s chief investigator Judge Richard Goldstone concluded that Israel has committed war crimes.  If anything, the sustained slaughter in Gaza today, which already exceeds the death toll of 2009, is more ferocious and disproportionate.  It is time for these matters to be tested in an international forum.  The US has on 42 occasions vetoed UN Security Council criticism of Israel.  It is time for an international court to rule on the conduct of the Israeli army.

If as the Israel Defense Forces Twitter account suggests, Israel has only done what other nations would have done it will be vindicated.  If it is willing to stand by and justify its actions, it should have nothing to hide.  The world has watched events in Gaza with stunned horror.  It is time that the international community adjudicated on what is being inflicted on the civilians of Gaza.  That is the point of international law.  That is the point of supranational organisations.  That is an acid test for international justice.