International Criminal Court Threatens Investigation into Israeli War Crimes in Gaza

Photo: Gaza Strip after Israeli assault in 2014

By Sherman Cox and Mike Talavera

Last week, International Criminal Court (ICC) chief prosecutor Fatou Bensouda signaled her intention to investigate war crimes committed in Palestine during Israel’s 51-day assault on Gaza in 2014, also known as Operation Protective Edge.

This decision, which has been stalled for five years in preliminary investigations, is itself only half-baked, with Bensouda stating that she needed a pre-trial chamber to confirm that the ICC could exercise its jurisdiction in the Palestinian territories, including Gaza and the West Bank.

“[G]iven the unique and highly contested legal and factual issues attaching to this situation, namely, the territory within which the investigation may be conducted, I deemed it necessary to rely on article 19(3) of the Statute to resolve this specific issue,” Bensouda writes in her statement.

Even though the process is moving at a snail’s pace, Israeli authorities have still reacted vehemently to the announcement. “[Bensouda] has also completely ignored history and the truth when she says that the very act of Jews living in their ancestral homeland, the land of the Bible, that this is a war crime,” said Israeli Prime Minister Benjamin Netanyahu.

As always, the US openly backed Israel’s outcry. “[The US] firmly opposes this unjustified inquiry that unfairly targets Israel. The path to lasting peace is through direct negotiations,” said US secretary of state Mike Pompeo.

The sluggishness of the ICC investigation and its outright rejection by Israel and the US shows how the court is constrained by imperialism, both in the sense that its jurisdiction is limited by the scope of what is recognized by imperialist countries, primarily US imperialism, and in that the laws through which it can exact justice are designed by and for the ruling class. The possibility of the court delivering any real justice for the Palestinian people is undermined by its foundations as an instrument of imperialism, which is responsible for the oppression of Palestine in the first place.

As a settler-colonial project, Israel has used the rebellion of Palestinians against their occupation as a pretext for unleashing massacres and wide scale assaults against them. In 2014, the alleged kidnapping and murder of three Israeli teenagers at first prompted hundreds of arrests and the killings of five Palestinians and eventually culminated into a full-on military operation against Gaza, resulting in thousands of Palestinian killed and injured and the near decimation of the territory’s infrastructure.

During this invasion and the period thereafter, the Israeli Defense Forces were accused of using unreasonable lethal force against protesters and carrying out civilian massacres as revenge for their fallen soldiers. Hamas, the organization leading resistance against the Israeli occupation of Gaza, was also accused of intentionally targeting civilians with their missiles and using civilians as “human shields.”

It was the Palestinian National Authority that submitted a petition to investigate the allegations. The ICC accepted and opened the preliminary investigation that would take half a decade.

Since the inception of the ICC in 2002, the court has only indicted and prosecuted individuals from African countries despite the fact that its jurisdiction spans over half of the countries of the world.

Due to this prejudice against the oppressed nations, it is unlikely that any indictments will be carried out against Israeli citizens, and even if indictments do occur it is obvious that the Israeli state will not cooperate with the ICC. Netanyahu described the announcement as a “baseless and scandalous decision” and argued that the ICC has no jurisdiction in the Palestinian territories, regardless of its membership in the ICC.

The ICC focuses solely on specific excesses in armed conflicts and can only prosecute individuals; Israel as a state can never be held to account for its ongoing genocidal campaign of colonialism against the Palestinian nation. By putting both the IDF and Hamas on the same level, the ICC endorses a “both sides” logic that flattens the contradiction between colonizers and those who heroically resist political and economic domination.

The Palestinian Authority also demonstrates the bankruptcy of reformism by conciliating with imperialists in their endorsement of the investigation. By putting stock in the ICC, they willingly uphold the imperialist institutions that recognize Israel’s legitimacy and consistently excuse their campaign of terror and oppression against the Palestinian people.

The “justice” the court is capable of doling out is little more than symbolic gesture. No number of criminal investigations, especially when headed by imperialist institutions like the ICC, will end the crimes committed against the Palestinian people, which are fueled by the demands of imperialism. Palestinians need and deserve true national liberation from occupation, which demands armed struggle against the Israeli state and US imperialism which supports it.