ICC probe could threaten Israeli 'era of impunity’

Shannon McGarry | Middle East and North Africa Fellow


Image Credit: cottonbro


The International Criminal Court (ICC) announced it is opening a formal investigation into war crimes committed in occupied Palestine, a move Israeli Prime Minister Netanyahu has labelled “the essence of anti-Semitism”. Palestine hopes that the investigation will bring justice for previous war crimes and attention to current disparities between the two states, particularly in terms of the Covid-19 vaccine roll out.


The investigation will assess allegations of war crimes arising since June 13, 2014; focusing on military actions on the Gaza Strip, particularly the 2014 war between Israel and Hamas and the 2018-2019 Great March of Return protests. This resulted in approximately 200 Palestinians being killed by Israeli forces, as well as Israeli settlement activity in the occupied West Bank and annexed East Jerusalem. The investigation has been welcomed by the Palestinian Authority but denounced by Israel, who claims that the court is politically-motivated and “pre-biased against Israel”.


Israel is not the only party facing allegations under the ICC probe; Hamas, a Sunni-Islamic Palestinian Nationalist group prominent in Gaza, will also be investigated. Unlike Israel, Hamas praised the ICC’s investigation and despite facing allegations itself is willing to work with the ICC in the pursuit of greater justice and accountability.


But Israel’s primary grievance with the investigation is that it rejects the ICC’s jurisdictional claim over the occupied territory. It claims that as Israel is not party to the Rome Statute which gives the ICC its jurisdiction, and as Palestine is not internationally recognised as a legitimate state, that the ICC does not have the authority to proceed with the investigation. Yet the investigation comes after the ICC announced its jurisdiction over the territory in February, following a five-year deliberation. Israel is yet to recognise the legitimacy of this decision, despite the court stating that it does not imply an “attempt to determine statehood or legal borders”.


International recognition of war crimes within the territory would be a welcome reprieve for Palestine as Covid-19 and the distribution of vaccines between Israel and Palestine exacerbates tensions. Israel has vaccinated over half of its nine-million strong population, making it a world leader in vaccine rollouts. But rather than vaccinate its Palestinian population it has instead distributed additional vaccines to faraway nations who stationed their diplomats in Jerusalem, such as the Czech Republic and Honduras. The move angered Palestinians with its implicit suggestion that Israel prioritises its minor allies over its occupied population, despite this potentially being detrimental to achieving herd immunity in the country. Israel’s vaccine roll out is leading the world with the highest rate of vaccination per Capita globally, but Israel has given a mere 5,000 vaccinations to the Palestinian Authority and claims the Palestinian Authority is responsible for healthcare in the West Bank and Gaza. But when the Palestinian Health Authority took this role on organising for 10,000 doses of Russia’s Sputnik vaccine in February Israeli security officials blocked their transfer to Gaza under the pretence that Palestine had not received formal Israeli government approval for the shipment.


Despite this, Israel’s deputy health minister Yoav Kish has maintained that Israel wants “everyone in the area to be vaccinated” likely due to the importance of establishing herd immunity and the threat a partially unvaccinated population presents, particularly with many Palestinians working as labourers and frequently coming into contact with Israelis. Yet Kish remains firm on the notion that responsibility to vaccinate Palestinians falls primarily on the Palestinian Authority, thus upholding Israel’s stance under the Oslo Accords. This stance has come under fire internationally as it may amount to a breach of the Geneva Convention which requires that Israel as an occupying power holds the duty to ensure the public health of people living under occupation to “the fullest extent” possible.


This disparity with the vaccination program in the occupied territories highlights the importance of the ICC’s investigation of war crimes in the region. Palestine hopes that involvement of the ICC will ensure human rights and accountability norms feature more prominently in conceptualising the conflict and seeking a future resolution. While the ICC’s probe will not achieve Palestinian’s ultimate goal of a formal recognition of its international statehood, it gives hope that the “era of impunity” for Israeli officials is coming to an end.


Shannon McGarry is the Middle East and North Africa Fellow for Young Australians in International Affairs.

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