On 20 September, a 700-page communication accusing Israel of war crimes was submitted to the International Criminal Court (ICC) by four Palestinian human rights groups. The report was submitted by four Palestinian human right organisations, all of which work in the field of human rights in the West Bank.
Shawan Jabarin, the director of Al Haq, one of these organisations, stated that the communication provides a “compelling and reasonable basis” for the ICC Prosecutor to open an investigation into alleged Israeli war crimes in the West Bank and East Jerusalem.
Are they occupied territories?
The report mainly addresses the transfer of civilian population into occupied territories. It also contains accusations of Israel maintaining discriminatory policies aimed at changing the demographic balance of the Territories in order to expand Israel, amounting to the Crime of Persecution and Apartheid.
The president of the Palestinian Center for Human Rights, Raji Sourani, said that Israel’s most serious crime is that of “settler activity”. In a statement published online, Sourani described Israel’s settlement activities as “a complete and ongoing crime and within the ICC jurisdiction par excellence”. The transfer of civilian population into occupied territory is prohibited under article 49 of the fourth Geneva Convention. Israeli human rights organisation B’tselem describes the existence as violating Palestinian human rights, “including the right to property, equality, a decent standard of living and freedom of movement”.
Israel is a party to the fourth Geneva Convention, but Israeli governments have generally maintained a stance that the Geneva Convention does not apply to the West Bank, claiming the territory is “disputed”, rather than “occupied”. These statements are mainly built on the premise that the West Bank has never been the legal territory of any state, and that there is no “High Contracting Party” to give the territories back to.
Israeli officials have also used biblical claims to the West Bank and East Jerusalem, like Israeli Ambassador to the UN, Ron Prosor, addressing the General Assembly in 2013, claiming “King David is from Judea, not from ‘the West Bank’”, “after all, you can’t occupy your own home”. Israeli official websites describe the Israeli settler activity in the West Bank as “the voluntary return of the Jewish people to the towns and villages from which their ancestors have been forcibly ousted”, maintaining a 2,000-year-old claim to the land.
The International Court of Justice, the UN General Assembly, the UN Security Council and the US State Department have all described the West Bank and East Jerusalem as ‘occupied’, making the settlement of Israeli civilians in the area illegal under international law.
Israel in the dock again
This is the fourth dossier that these organisations have submitted to the ICC Prosecutor since the State of Palestine formally joined the Court in 2015. Previous communications have called for investigations into alleged war crimes committed by Israel in Gaza during the 2014 war, as well as the Israeli blockade imposed on Gaza as a form of collective punishment. This is the first communication submitted to the ICC calling for an investigation into Israeli war crimes in the West Bank.
The Prosecutor of the ICC, Fatou Bensouda, had already opened a preliminary investigation into Israel and the Occupied Palestinian Territories in 2015, immediately after Palestine acceded the ICC. The purpose of this preliminary investigation is to establish whether there is a reasonable basis to proceed with an investigation into war crimes in accordance with the criteria set by the Rome Statute (the ICC’s founding treaty). It is currently still ongoing.
Israeli officials agreed in October 2016 to allow the ICC to send a delegation to Israel and the Territories, yet it remains unclear when the visits to gather evidence will be conducted.
Israel’s internal investigations
The Israeli Defence Force (IDF) has conducted internal investigations into alleged misconduct of their troops during the 2014 Gaza war. Among the incidents investigated by the IDF an attack on a Palestinian home 20 July 2014, in which 27 members of the same family were killed. There was also alleged looting by Israeli troops, the killing of a civilian waving a white flag and Israeli soldiers using Palestinian civilians as human shields. Though a few soldiers were convicted of looting, none of the investigations brought forward major prosecution of Israeli soldiers for any wrongdoings during the last Gaza war.
Israeli and international Human Rights organisations have criticised internal IDF probes, claiming they are only conducted to “whitewash” Israeli crimes in Gaza, and to prevent the ICC from conducting an investigation into Israeli wrongdoings. In a report published on their website, B’tselem called the probes “a whitewash mechanism”, only focusing on individual cases of soldiers in the field and not targeting “the true culprits, government officials or senior military commanders”.
Around 66 Israeli soldiers and 2,250 Palestinians were killed during the last war on Gaza. “Operation Protective Edge” lasted from 8 July to 26 August 2014. The reported number of Palestinian civilian casualties differs from 1,189 deaths according to official Israeli sources, to 1,617 according to the Gaza Health Ministry. UNHCR claims that 1,462 Palestinian civilians were killed.
Israeli official sources maintain that, “unlike Hamas, Israel is firmly committed to maintaining its obligations under International Law”, saying that their soldiers receive extensive training on international law before going into the field; and that they are willing to address any claims of wrongdoing by Israeli military personnel.