Will Israel’s War Crimes Go Unpunished?

The credibility of the International Criminal Court has fallen into question because it focuses on human rights abusers in weak countries while ignoring those in powerful countries or with powerful friends, a criticism being tested again by Israel’s slaughter in Gaza, as Brian J. Trautman notes.

By Brian J. Trautman

Israel’s month-long military barrage of Gaza known as “Protective Edge” included numerous attacks on civilian-populated sites, including on homes, hospitals, mosques, markets and United Nation (UN) schools-turned-shelters.

To date, Israel’s assault has killed at least 1,300 Palestinian civilians, including over 400 children, and injured more than 10,000. (Some estimates are much higher.) An estimated half a million people have been displaced. Upwards of 10,000 homes have been destroyed and countless others partially damaged.

Prime Minister Benjamin Netanyahu held a security meeting with senior Israeli Defense Forces commanders near Gaza on July 21, 2014. (Israel government photo)

Prime Minister Benjamin Netanyahu held a security meeting with senior Israeli Defense Forces commanders near Gaza on July 21, 2014. (Israel government photo)

Strikes on some of the abovementioned sites have prompted international calls for officials of Israel’s government to be investigated for possible war crimes in Gaza.

Referring to the deadly July 30 attack on a UN school, the human rights organization Amnesty International argued that “If the strike on this school was the result of Israeli artillery fire it would constitute an indiscriminate attack and a likely war crime.” On Aug. 7, citing “mounting evidence” that Israel engaged in “apparently deliberate attacks against hospitals and health professionals in Gaza” which “left six medics dead” and injured many more, Amnesty International called for an “immediate investigation.”

The organization also published “disturbing testimonies from doctors, nurses, and ambulance personnel” which detailed “harrowing” life-saving efforts of medical personnel faced with an “utterly impossible situation” of working “with bombs and bullets killing or injuring their colleagues.”

Military attacks of this sort, according to Amnesty International, “are absolutely prohibited by international law and would amount to war crimes” and “only add to the already compelling argument that the situation should be referred to the International Criminal Court.”

In a recent statement to the UN General Assembly, Pierre Krähenbühl, Commissioner General for the United Nations Relief and Works Agency (UNRWA), the UN Agency providing assistance and protection to five million Palestine refugees, underscored the losses suffered: “the conflict did not spare UNRWA installations and staff.”

Summarizing the destruction, the Commissioner added: “Ninety of our premises have been damaged. Six of our schools were hit directly by shelling or affected by rocket fire in their immediate vicinity, with serious loss of life and injuries.”

The UNRWA, explained the Commissioner, has “condemned such military actions by Israel explicitly and unreservedly” and “cannot comprehend why they occurred, and even less why they happened so repeatedly.” Moreover, the UNRWA has “asked for investigations to be carried out and for accountability.”

The Commissioner acknowledged his agency had found some unused schools being used by Hamas for weapons storage. However, as a result of UNRWA inspection work and a “clear and deliberate” information sharing campaign, people on the ground as well as world governments were aware of the nature and location of these sites.

The international body tasked with the responsibility of ensuring that the most serious crimes are punished is the International Criminal Court (aka “the ICC” or “the Court”). Founded in 2002 under the Rome Statute, an international treaty, and based in The Hague, the Netherlands, the ICC is an autonomous, permanent court established to investigate, prosecute and try individuals (e.g., high-level government officials) accused of crimes of international concern, namely genocide, crimes against humanity, war crimes and the crime of aggression. As of May 2013, the Rome Statute has been ratified by 122 countries, not including the United States or Israel.

According to the Court’s website, while the Nuremberg and Tokyo tribunals were established to prosecute the atrocities committed during World War II, many violations of international law during the Twentieth Century went unpunished. And while the UN General Assembly proposed a permanent international court in 1948 and again after the Cold War, it was not until the 1990s that serious negotiations took place to create such a court.

By this time, crimes against humanity were being committed in the territory of the former Yugoslavia and in Rwanda. The Court is currently conducting investigations on crimes allegedly committed in eight states, including Sudan (for the situation in Darfur), the Democratic Republic of the Congo, Uganda and Libya. In addition, preliminary analyses that may lead to investigations are ongoing in eight situations, including Afghanistan, the Republic of Korea, Honduras and Nigeria.

Some have argued that the ICC does not have jurisdiction in Gaza because Palestine is not a signatory to the Roman Statute. Others believe the ICC does have jurisdiction despite this fact. In an article published by the Guardian newspaper on Aug. 8, the Bar Human Rights Committee (BHRC) of England and Wales outlined two main reasons why the ICC does indeed have jurisdiction in this case: “the United Nations general assembly’s decision to grant Palestine observer-state status means the ICC has jurisdiction to investigate allegations of crimes” and “a 2009 declaration submitted by the Government of Palestine, accepting the jurisdiction of the court, provides the prosecutor with the jurisdictional basis to initiate an investigation.”

While this approach can serve as a potential path forward for the ICC to open an investigation, the BHRC points out that it “continues strongly to encourage Palestine’s ratification of the Rome Statute as the most straightforward basis for ICC jurisdiction over crimes committed on its territory.”

Israel is already attempting to recruit supporters to stave off an ICC investigation of its leaders. Last week, Benjamin Netanyahu, Israel’s prime minister, turned to allies in U.S. Congress for a pledge of support. Regardless of the efforts of Israel or its closest ally, the United States, to prevent the ICC from seeking justice for the Palestinians and international aid workers killed and wounded in Gaza, the Court has a duty to at least open an investigation.

The credibility of the ICC hangs in the balance. No individual who violates international law should escape justice. If Israeli officials are not investigated for possible war crimes in Gaza, then the tragic lessons learned from the last century about failures in international criminal justice and the consequences of inaction will have been in vain.

Brian J. Trautman is a military veteran, an instructor of peace studies at Berkshire Community College in Pittsfield, Massachusetts, and a peace activist. On Twitter @BriTraut.

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15 comments on “Will Israel’s War Crimes Go Unpunished?

  1. Hillary on said:

    Israeli strategists and their TV pundits want Hamas and its rag tag resistance fighters with their home made rockets and antique rifles etc.etc. to come face to face and “do battle” with the superior nuclear armed Israeli Navy, Air force and Army on the “battlefield” of Gaza.
    .
    A plan that might favor the superior nuclear Israeli Navy, Air force and Army.
    ..
    Courageous resistance fighters against any occupation are not that stupid and unfortunately Gaza is one of the most densely populated areas in the world..

    Meanwhile the Israeli Military , Government & majority of its people want to dish out the MAXIMUM Vicious Biblical Punishment of death and destruction wherever & whenever they can.

    Can we remember in the “Cast Lead” invasion of Gaza when Rabbis blew their replica horns that they magically used to bring down the mythical “walls of Jericho ” behind the Israeli front lines to encourage the Israeli soldiers to continue the “slaughter” within Gaza that was under siege and was even compared by Professor Filkinstein to the Warsaw Ghetto of WW II.
    http://www.indymedia.org.uk/en/2009/01/419392.html

    P.S. War Crimes Tribunal Finds Israel Guilty Of Genocide Against The Palestinian People— https://www.youtube.com/watch?v=zbhIuInUUKY

  2. F. G. Sanford on said:

    Will Israel’s war crimes go unpunished? The short answer is yes, but first, a modicum of historical background.
    The International Military Tribunal at Nuremberg under the supervision of U.S. Chief Justice Robert H. Jackson defined the waging of aggressive war as, “…essentially an evil thing…to initiate a war of aggression…is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” A war of aggression is defined as, “…a military conflict waged without the justification of self-defense, usually for territorial gain and subjugation.”
    The entire question will turn on two things. The first will be whether or not “self defense” was involved. If we ignore the fact that Gaza is occupied territory and pretend that its citizens are a foreign aggressor, then the case for self defense is a forgone conclusion. The second will be, “When did this war begin?” If we acknowledge that the war against Palestine began in 1948, and that Israel declared its statehood before the United Nations resolution regarding the Mandate for Palestine was ever ratified, then it is clearly a war for territorial gain and subjugation. As has always been the case, that aspect of reality will be conveniently ignored. The United States, Israel and NATO countries will favor the opinion that the “war” started a couple of weeks ago and was waged in “self defense”, a response to Palestinian aggression.
    The American Servicemembers Protection Act of 2002, dubbed the “Hague invasion clause,” which is intended to intimidate countries that ratify the treaty for the International Criminal Court, authorizes the use of military force to liberate any American or citizen of a U.S. allied country being held by the court. But, The U.S. Constitution mandates that treaties ratified by the United States become “Law of the Land”. The ASPA of 2002 violates the spirit of the U.N. Charter regardless of whether or not the U.S. has ratified the Rome Statute. It is essentially a legislative ruling in contravention of an existing law which enjoys preceding Constitutional authority. As such, it is an ex post facto law and violates The Constitution. Implementation of the act by force would constitute aggressive war. So, the act violates The U.S. Constitution on three counts. That will also be conveniently ignored. The U.S. Constitution is no longer the “controlling legal authority” in the United States. It was abolished when the Nazi juridical scholar Carl Schmitt’s “State of Exception” reasoning was used to subordinate legal to political authority. This grants the Executive branch authority to suspend Constitutional protections under NDAA and The Patriot Act. (Yes, I know – owing to the complete lack of an informed citizenry, someone will accuse me of “satire”. Trust me, I’m not smart enough to make this up.)
    Mr. Trautman notes, “Strikes on some of the abovementioned sites have prompted international calls for officials of Israel’s government to be investigated for possible war crimes in Gaza.” There is no need to “investigate” a case of res ipsa loquitur. The perpetrators need merely be arrested while arrangements are made for the trial – just like we did at Nuremberg, which is exactly where they belong.  

  3. John J on said:

    I wondered if Mr. F. G. Sanford would clarify a particular matter for me, I rather think he teaches history or has a great interest in it. As far as I know the partition agreement on Palestine was only passed by the General Assembly, not the Security Council and thus not legit. Also the Palestinians ( and other Arab countries were never consulted on the matter) refuse to accept it. I gather Palestinians have to accept it for it to be legit. They are moot points of historical significance but in some ways perhaps too much time has passed for their significance today.

  4. F. G. Sanford on said:

    @ John J: “…the sole justification for the British rule of Palestine was the British obligation specified in the preamble to the Mandate instrument to “be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine…The United Nations decision was to divide Palestine into three zones: a Jewish state, a Palestinian state and a UN administered enclave around the city of Jerusalem…While Britain and America argued at the United Nations, Palestine slid into war…Then on April 10, about five weeks before the final British withdrawal, came the event that would establish the precondition of the Palestinian refugee tragedy — the Deir Yasin massacre…The Irgun, possibly acting alone, then massacred the entire village population — men, women and children — and called a press conference to announce its deed and to proclaim that this was the beginning of the conquest of Palestine and Trans-Jordan…”*

    *The facts are all laid out in William R. Polk’s August 11, 2014 article on this site. There was never any “agreement”, only a war of conquest. Partisan politics back in USA gave it all a veneer of legitimacy, but there is no truth to the notion that any of this was “legal”.

  5. John J on said:

    Thank you Mr. Sanford. I read Mr. Polk’s piece but it didn’t cover the UN vote which many Zionists push. From what I’ve read, Zionists used a lot of bribery to influence the vote in their favour, but what was tabled was not a plan to divide Palestine into 3, but to move forward with a committee to draw up a partition plan.
    I think Benny Morris’s book, “The Birth of the Palestinian Refugee Problem Revisited,” is very revealing on how well the Zionists had prepared themselves, having intelligence on every Arab town knowing who would be a danger to them and who not. Sadly Morris’s outlook has changed. Then there is Ilan Pappe’s, “The Ethnic Cleansing of Palestine.”
    I’ll read Polk’s material again tomorrow. This terrible injustice doesn’t make for a good bed time story. It usually induces a restless night. Thank you for your time. John

  6. Joe Tedesky on said:

    In a 1934 letter to the League of Nations, Edmond de Rothschild stated that “the struggle to put an end to the Wandering Jew, could not have as its result, the creation of the Wandering Arab.”
    ………………………..

    In a Nov. 10, 1945 meeting with American diplomats brought in from their posts in the Middle East to urge Truman not to heed Zionist urgings, Truman had bluntly explained his motivation:

    “I’m sorry, gentlemen, but I have to answer to hundreds of thousands who are anxious for the success of Zionism: I do not have hundreds of thousands of Arabs among my constituents.”

  7. Joe Tedesky on said:

    The 2nd quote came from;

    Truman Adviser Recalls May 14,1948 US Decision to Recognize Israel
    By Richard H. Curtiss

  8. Terry Washington on said:

    First things first, the net issue is whether or not the PA constitutes a “state” without which no ICC investigation can take place. As the US has vetoed the PA’s application to join the UN General Assembly, I don’t see how that is the Court’s fault!

  9. What about the crimes against Israel by arab terrorists over the decades? plane hijackings, kidnappings, homicide bombings, indiscriminate rocket attacks, anti-Semitic press attacks, multiple wars, to name a few?

  10. The pictures of destruction and mourning in Gaza that have filled media around the world for the past several weeks have been very painful and sad to view. One would be hard-pressed to find an Israeli who does not sympathize with the suffering of Gaza’s victims.

    Yet there are also few Israelis who feel we are responsible for this suffering. For us, the tragedy of Gaza is inseparable from the tragedy of the entire Middle East. Over the past three years, in countries around our tiny state, more than a quarter of a million people have been killed in the most horrific ways. This wave of terror recognizes no official borders. The only border at which the savagery stops is Israel’s.

    Hamas and Hezbollah are doing their best to change this. So what protects us? The United Nations or human rights groups? No. Only the military power of the Israel Defense Forces. In response to our enemies’ relentless campaigns, the army is constantly developing new ways to defend us. One new weapon, Iron Dome, has in the past few weeks protected civilians from almost 3,000 missiles.

    But while Israelis have developed missile shields to protect children, Hamas has been using children as shields to protect missiles. This perverse strategy is the brainchild of a society that hails death. For Hamas, using living shields serves the double function of increasing the number of martyrs and galvanizing a free world that values life to pressure Israel to stop fighting.

    The sad irony, then, is that while the world can do so little to stop the terror in Syria or Sudan, it can do a lot to press Israel to stop defending itself. We ask ourselves, is this hypocrisy? Is this a betrayal by the free world whose values we are defending? And in response, Israel hears from the international community, “Of course you are judged differently. You insist that you are part of the free world, so we hold you to a higher standard than neighboring countries, where wanton destruction of human life is the norm.”

    I strongly agree with this argument.

    Israel, like any other free country, should be held to a higher moral standard than its unfree neighbors. As the war against terror becomes increasingly global, it is imperative that all free countries develop and uphold common norms in our military conduct against armies of terror. Israel, with its decades-long experience, can contribute much to this effort.

    For example, 12 years ago, during the Second Intifada, I was a member of the Israeli security cabinet when the army first decided to use aviation to target terrorist leaders. In nearly every cabinet meeting, Israel’s attorney general insisted that our targets must be chosen not on the basis of crimes already committed, but solely in light of proof that they were planning new terrorist acts. In other words, no matter how much death and destruction someone had caused, a targeted killing could be justified only by documented intentions to carry out another attack. A serious case had to be prepared for each assassination attempt, and therefore the number of such operations could be counted on one hand. Now that targeted killings are practically the norm — when the United States uses drones for this purpose all over the world — I would hope others are as scrupulous as Israel has been.

  11. Samuel Hughes on said:

    Beginning to think Hitler got really bad press. There is always two sides to every story and as far as I know he was not the first to dislike the Jews.

  12. Zachary Smith on said:

    “Beginning to think Hitler got really bad press. There is always two sides to every story…”

    If you ever find out what that second side (presumably the good one) to Hitler was, kindly share it. In the course of all my own reading, I’ve never seen it.

  13. In a pre-dawn airstrike, three top Hamas commanders were killed by an Israeli strike on a four-story building near Rafah in the southern part of the Gaza Strip on Thursday, August 21. The three senior Hamas leaders are responsible for dozens of deadly terrorist attacks including the 2006 kidnapping of Gilad Shalit and the recent Gaza tunnel infiltrations into Israel.

    The Shin Bet confirmed that it had targeted two Hamas leaders, Raed Al-Attar and Mohammed Abu Shamaleh early this morning, releasing a statement: “The strike was the result of intelligence and operational activities, which led to the detection and attack on two central operatives from the heart of Hamas’s leadership.” Hamas named the third prominent commander who was killed in the strike as Mohamed Barhoum.
    Raed Al-Attar:
    Mohammed Abu Shamaleh:

    Both men share a long history of carrying out attacks on Israel beginning in the early 90’s when Abu Shameleh was involved in killing an Israeli soldier in Rafah in 1994. That same year, Al-Attar also killed an Israeli soldier on the Egyptian border. In June 2006, Al-Attar planned the Hamas tunnel infiltration near the Kerem Shalom crossing and the abduction of Israeli soldier Gilad Shalit and the killing of two Israeli soldiers. He was one of the Hamas terrorists who held Shalit during the five years of his captivity and was featured prominently in video footage showing the return of Shalit to Israel in 2011. Israel exchanged 1,027 Palestinian terrorists for the release of Gilad Shalit in 2011.

    Most recently, Al-Attar, who served as the Hamas commander of the Rafah region in Gaza, was responsible for the abduction and murder of Lt. Hadar Goldin during Operation Protective Edge. According to the Shin Bet, Al-Attar’s Rafah troops perpetrated the deadly attack and were involved in other attacks that wounded IDF soldiers. Al-Attar is also one of the key architects of the construction of cross-border tunnels into Israel.

    Abu Shamaleh was most recently involved commanding the infiltration of 13 Hamas men into southern Israel, near Kibbutz Sufa on July 17. The IDF thwarted the attack.

    Barhoum, who was considered a lesser commander, had been in a meeting with Abu Shamaleh and Al-Attar when the Israeli strike took place on Thursday morning.

    Last week on August 16, Hamas’s military wing the Izz ad-Din Al-Qassam Brigades, released a message on their Twitter account stating that “We are continuing our struggle. Allah is our goal. The prophet is our leader, Jihad is our way, and death for Allah is our most exalted wish.”

    I guess these terrorists and their acts aren’t considered “war crimes”….