Will Israel be taken to the Hague for crimes against humanity in Gaza?

Posted on : 2023-11-09 17:04 KST Modified on : 2023-11-09 17:04 KST
With war breaking out again in Gaza, several countries, including South Africa, Switzerland, and Liechtenstein, have formally requested that the ICC intervene
Amnesty International asserted on Oct. 31 that Israel had used white phosphorus in an attack on Lebanon. Pictured is an explosion of what appears to be a white phosphorus munition used by Israel in a border village in southern Lebanon. (AP/Yonhap)
Amnesty International asserted on Oct. 31 that Israel had used white phosphorus in an attack on Lebanon. Pictured is an explosion of what appears to be a white phosphorus munition used by Israel in a border village in southern Lebanon. (AP/Yonhap)

Israeli forces have expanded their war into Lebanon with the stated aim of taking on the militant group Hezbollah.

On Oct. 29, Amnesty International released evidence revealing Israel’s unlawful use of artillery shells containing extremely toxic white phosphorus in the southern Lebanese town of Dhayra. The weapon is banned under international law, and as such, Amnesty International argued that the attack must be “investigated as a war crime.”

Two days before that, Karim Khan, a prosecutor of the International Criminal Court (ICC), held a press conference in Cairo, Egypt, where he criticized Israel for the blockade of Gaza and the cutting off food and medicine.

Prior to the press conference, he posted a video statement on social media, warning that Israel could face “accountability” under the Rome Statute. He also added that he and his office have an ongoing investigation with jurisdiction over Palestine that “goes back to 2014 and any crimes committed on the territory of Palestine by any party,” adding that the Palestinian militant group Hamas was also under investigation.

The Rome Statute: The cornerstone of the ICC

With Russia’s invasion of Ukraine followed by the war between Israel and Hamas, the world seems to be descending into tragedy.

While war is, without a doubt, the most horrific historic occurrence of all time, there are ways belligerents can make it a little less horrific. That’s why international law prohibits torturing, killing, and forcing prisoners of war into forced labor, and why the international community sanctions the use of weapons that inflict horrific physical pain and the mass killing of civilians.

Treaties, international laws, and resolutions passed by the United Nations are the frameworks that establish such rules. Of course, there are many cases where international law is not upheld, such as the use of chemical weapons by the Syrian regime, Israel’s use of shells containing white phosphorus, and Russia’s bombing of civilian areas in Ukraine.

But compared to the time when no such international rules stood, most countries now abide by the code for fear of being penalized.

Extermination, the intentional killing of civilians, wartime sexual assault, the abuse and execution of prisoners of war, and the destruction of civilian areas and infrastructure such as health, medical, education, and facilities are defined as crimes against humanity.

These are a slightly broader concept than “war crimes.” The first time the international community addressed war crimes in a court of law in the form of a trial dates back to the Nuremberg and Tokyo trials in the immediate aftermath of World War II.

In August 1945, a new legal category of “crimes against humanity” was created in the London Charter, which became the basis for the work of the International Military Tribunal at Nuremberg.

Another concept added at the time was “crimes against peace,” which sought to criminalize the act of planning and starting wars. Nevertheless, the Nuremberg trials did not address the genocide of Jews perpetrated by Nazi Germany itself. The Holocaust only was litigated after the establishment of Israel in 1948 and during the pursuit of the perpetrators.

Like all concepts, the perception of a crime evolves with the times. The concept of crimes against humanity has evolved through customary international law and trials in various international courts.

The clearest reference is the Rome Statute, adopted in 1998 to establish the International Criminal Court. According to the statute, crimes against humanity include “acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” that involve murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and more.

It also includes the persecution of “any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds,” and apartheid.

Israel never became a party to the Rome Statute

The Nuremberg and Tokyo trials were followed by the creation of the International Criminal Tribunal (ICT) for the Former Yugoslavia, the ICT for Rwanda, the war crime tribunals for civil wars in West Africa, and the Cambodia Tribunal, but the operations of each court were very different.

Also, these trials took so long that the accused often managed to slip away from accountability to live affluent lives, raising the question of whether “delayed justice” can qualify as justice, after all.

The Rome Statute emerged in the wake of the Rwandan genocide and the civil wars in the former Yugoslavia, when the international community recognized the need to create a common framework for adjudicating crimes against humanity.

The Rome Statute established the International Criminal Court in The Hague, the Netherlands, in 2002 and 123 states are party to the statute, including South Korea. When a case is referred to the ICC, it is preliminarily reviewed by the Office of the Prosecutor and then enters a “formal” investigation.

If the prosecutor files an indictment, the case goes to court. The Pre-Trial Division considers whether the case should go to trial, and if so, the Trial Chamber takes over. International humanitarian law and international law of armed conflict do not have a single codified body of law that applies to parties to a conflict, but the Geneva Conventions of 1949 and its protocols serve as a body of law.

The problem is that the Rome Statute has been rejected by great powers and countries accused of crimes against humanity.

The US had signed the statute, but has since withdrawn. Russia, China and India have not signed the statute at all, and the same goes for Israel. Palestine became a state party to the Rome Statute in 2015.

When the ICC investigated Israel’s 2014 attack on Gaza and illegal establishment of settlements in the West Bank and annexation of East Jerusalem at the request of the Palestinians, Israel claimed that as it was not a party to the Rome Statute, the court “lacks the jurisdiction to investigate.”

At the request of then-ICC Prosecutor Fatou Bensouda, the court determined that it did have jurisdiction over the West Bank, Gaza, and East Jerusalem. In 2020, then-US President Donald Trump revoked Bensouda’s US visa and imposed financial sanctions on her after a five-year preliminary investigation. After Bensouda left office in June 2021, the ICC suspended its investigation of the case.

With war breaking out again in Gaza, several countries, including South Africa, Switzerland, and Liechtenstein, have formally requested that the ICC intervene. Prosecutor Karim Khan has vowed to investigate with conviction.

The ICC’s investigation and prosecution of Israeli political and military leaders cannot force them to appear in court. However, it would put enormous pressure on them and constrain their behavior.

Israeli military officials and politicians risk arrest when traveling to Rome Statute signatories. Israel has relied on US protection in international organizations, but the US, which is not a signatory to the Rome Statute, has limited leverage with the ICC.

Since European countries have asked the ICC to carry out a vigorous investigation of Russia’s invasion of Ukraine and to file charges where appropriate, any attempt to shield Israel would amount to a logical contradiction.

Despite the intense pressure it is under, the ICC is obligated to present the international community with a standard for justice with Israel in the crosshairs. Not only Palestine, but the entire world, is watching.

By Gu Jeong-eun, international news reporter

Please direct questions or comments to [english@hani.co.kr]

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