ICC Criticized for Neglecting Probe of Israeli War Crimes

Rights groups are criticizing inaction by the ICC prosecutor in a year when more than 200 Palestinians, including many children, were killed in the West Bank and Gaza Strip, writes Marjorie Cohn.

International Criminal Court, The Hague. (Greger Ravik, CC BY 2.0)

By Marjorie Cohn

Nearly two years have passed since the International Criminal Court (ICC) began investigating war crimes committed in the occupied West Bank, including East Jerusalem, and Gaza. But the ICC has yet to take concrete steps to move the investigation forward.

Frustrated with the glacial pace of the ICC’s investigation and the lack of clarity about how and when the investigation will proceed, three Palestinian human rights organizations issued a joint statement to the Assembly of States Parties to the Rome Statute (the management body of the ICC) on Dec. 6, saying,

“We have not seen any concrete step in this investigation, no action by the Prosecutor to break the vicious cycle of impunity. The situation on the ground is deteriorating year after year, month after month, day after day. We feel that we have been left alone in our struggle. And Palestinian victims are losing hope.”

The initial news of the ICC investigation came on March 3, 2021, when Fatou Bensouda, then-chief ICC prosecutor, announced the opening of a formal investigation into war crimes committed in the West Bank, including East Jerusalem, and the Gaza Strip, during and since Israel’s 2014 “Operation Protective Edge,” which killed 2,251 Palestinians.

Following a five-year preliminary examination, Bensouda found a reasonable basis to believe that Israeli forces had committed the war crimes of willful killing, willfully causing serious injury, disproportionate use of force and transfer of Israelis into Palestinian territory.

Bensouda also found there was a reasonable basis to investigate possible war crimes by Palestinians, including intentional attacks against civilians, using civilians as human shields and torture and willful killing.

Fatou Bensouda, former ICC prosecutor, in October 2021.  (Wayamo Foundation, CC BY-SA 2.0, Wikimedia Commons)

The three Palestinian human rights organizations that issued the joint statement this month to raise concerns about the lack of progress in the ICC investigation are the Palestinian Centre for Human Rights (a group that protects human rights and promotes the rule of law in accordance with international standards), Al-Mezan Center for Human Rights (a group that protects human rights, especially economic, social and cultural rights, in the occupied Palestinian territory) and Al-Haq (which documents human rights violations in the occupied Palestinian territory).

“In 2021, the opening of an investigation by the Prosecutor was perceived as a huge leap forward,” the groups wrote in their joint statement. “After years of frustration, we hoped that it was the start of a new era of accountability for the grave crimes committed in occupied Palestine.”

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This year alone, the three groups added, more than 200 Palestinians, including many children, were “killed by Israel’s settler-colonial regime in the West Bank and Gaza Strip.” They also noted that beloved Palestinian Al-Jazeera journalist Shireen Abu Akleh “was assassinated in cold blood by an Israeli sniper in broad daylight” and that six prominent Palestinian civil society organizations, including Al-Haq, were shut down after being falsely designated as “terrorist organizations.”

Protesters in Lod with photos of Shireen Abu Akleh, May 22. (CC BY-SA 4.0, Wikimedia Commons)

In spite of these events, the three organizations wrote, the ICC’s Office of the Prosecutor hasn’t issued a single statement concerning Palestine. They contrasted the ICC prosecutor’s inaction on Palestine with the situation of Ukraine, about which the Office of the Prosecutor has been very proactive.

“It is also crucial that the same level of attention, activity, and resources is applied to other situations including, Palestine, to avoid perceptions of selectivity and politicization,” the groups wrote. “Victims should not be competing for justice and double standards should not have a place in justice.”

On Nov. 21, Bezalel Smotrich, head of Israel’s far right Religious Zionism Party, called Palestinian human rights organizations an existential threat to Israel. He said that the incoming Israeli government must take legal and security measures against them including “seizing their funds.”

Open Letter to Karim Khan

ICC Prosecutor Karim Khan. (UN International Criminal Tribunal for the former Yugoslavia, CC BY 2.0, Wikimedia Commons)

Two days later, 198 Palestinian, regional and international civil society organizations  — including the National Lawyers Guild, Center for Constitutional Rights, Amnesty International, Human Rights Watch and International Association of Democratic Lawyers — wrote an open letter to Chief ICC Prosecutor Karim Khan, decrying “missed opportunities for preventive statements in the past year.”

The organizations cited Israel’s killing of Palestinians “without clear provocation” as well as raids and assaults against worshipers at the Al Aqsa Mosque and Al-Haram Al-Sharif in occupied East Jerusalem.

Three of the six designated “terrorist organizations,” the civil society organizations noted, have been providing the ICC prosecutor’s office with information about “alleged serious crimes committed by Israeli nationals within the jurisdiction of the Court.”

The groups cited the Apartheid Convention, which lists as an “inhuman act” of apartheid, the “persecution of organizations and persons by depriving them of fundamental rights and freedoms, because they oppose apartheid.”

The civil society organizations wrote to the ICC prosecutor: “Although Israel’s targeting of these organisations could hinder the work of the ICC, there has been no public reaction by your office.” The CSOs urged the Office of the Prosecutor to:

  • Publicly condemn and call on Israel to rescind the terrorist designations;
  • Publicly affirm that the Office of the Prosecutor will scrutinize Israel’s crimes during its unprovoked military offensive in August 2022;
  • Urgently expedite the ICC investigation into the Situation of Palestine, including the crimes against humanity of apartheid and persecution; and
  • Issue preventive statements to deter Israel’s crimes against humanity and war crimes.

Prime Minister-designate Benjamin Netanyahu is assembling “Israel’s most extreme right-wing government to date,” attorney Diana Buttu, former adviser to the negotiating team of the Palestine Liberation Organization, wrote Tuesday in an op-ed in The New York Times. 

Netanyahu’s government will likely be receptive to Smotrich’s suggestion to persecute Palestinian human rights organizations even more severely than the prior government that designated them “terrorist” and shut down their offices.

Washington Pressure

U.S. President Joe Biden and Israeli Prime Minister Yair Lapid in Jerusalem in July.  (White House, Adam Schultz)

Moreover, the chief enabler of Israel’s illegal occupation of Palestinian territory, the U.S. government — which annually provides Israel with $3.8 billion in military aid — is implicitly exerting pressure on Khan to drag his feet on the ICC investigation of Israeli crimes.

When U.S. President Joe Biden visited Jerusalem in July, he and Israeli Prime Minister Yair Lapid concluded an agreement affirming they would “continue to work together to combat all efforts . . . to unfairly single [Israel] out in any forum including at the United Nations or the International Criminal Court.”

Although the United States refuses to join the ICC, it has consistently tried to undermine it, expressing “serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel.”

But on March 15, 100 U.S. senators (who find it difficult to agree on anything) unanimously passed SR 546, which “encourages member states to petition the ICC or other appropriate international tribunal to take any appropriate steps to investigate war crimes and crimes against humanity committed by the Russian Armed Forces.”

To Palestinians and their allies, U.S. hypocrisy is palpable. The United States selectively criticizes some countries (such as Russia and China) for their human rights violations but pointedly ignores Israel’s illegal occupation of Palestinian territory and its commission of war crimes and crimes against humanity against the Palestinian people.

Opponents of Israel’s crimes should register their strong opposition to the United States’ enabling of Israel’s oppression of the Palestinians — both to their congress members and to the White House.

As long as the U.S. government receives no significant pushback, it will continue to facilitate Israel’s illegal occupation and violate the human rights of the Palestinian people. People can also join the Boycott, Divestment, Sanctions movement to end international support for Israel’s oppression of Palestinians and pressure Israel to comply with international law.

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” radio.

This article is from Truthoutand reprinted with permission.

The views expressed are solely those of the author and may or may not reflect those of Consortium News.

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13 comments for “ICC Criticized for Neglecting Probe of Israeli War Crimes

  1. Riva Enteen
    December 19, 2022 at 13:00

    “…contrasted the ICC prosecutor’s inaction on Palestine with the situation of Ukraine, about which the Office of the Prosecutor has been very proactive.”

    Wow. The UN has hardly been “very” proactive in enforcing Minsk I and II, protecting Ukrainian civilian evacuation zones, preventing the shelling of Europe’s largest nuclear power plant, investigating the blowing up of Nordstrom I and II or the Crimean bridge, the Ukrainian kill list that has hundreds of children…need I go on? But Cohn thinks the Russian efforts to protect the people of the Donbass from genocide was illegal, so maybe the UN is right to only see reality through Ukrainian/US/NATO eyes. The UN is a collaborator in war crimes rather than a peacekeeper, and denial of that allows the killing to continue…

    In 1984, Nicaragua filed charges against the US in the UN’s International Court of Justice to condemn the US bombs placed in Nicaraguan harbors. The Court ruled against the US, which then rejected the Court’s jurisdiction, effectively becoming a rogue state. By not challenging the US’ position of immunity from prosecution, all subsequent UN actions against other countries are now selective prosecution. To deny that, allows the killing to continue as well…

  2. DW Bartoo
    December 18, 2022 at 08:07

    Let it be remembered:

    On June 11, 2020 Executive Order 13928 was signed by then President, Donald Trump, declaring a national security emergency – authorizing asset freezes and family entry bans against ICC officials.

    On September 02, 2020, the U$ imposed sanctions on ICC Prisecutor Fatou Bensouda and senior ICC official Phakiso Mochochoko, saying that the Prosecutor and her senior aide could be subject to civil and criminal penalties for investigating and charging U$ individuals for war crimes allegedly committed in Afghanistan and Israeli crimes against humanity in Palestine.

    Mike Pompeo, then Secretary of State, vowed to “exact consequences” if the ICC
    “continued down its current path,”

    Anyone who “engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any U$ personnel without the consent of the U$” could be subject to a criminal fine of up to $1,000,000 and up to 20 years in prison.

    On April 02. 2021, the Biden administration revoked the executive order.

    However, investigations into war crimes and crimes against humanity in Palestine and Afghanistan, including U$ torture, have proceeded extremely slowly,

    Might it be imagined that Israel and the U$ continue, behind the scenes, to dissuade investigations that could uncover such conduct by U$ and Israeli nationals?

    • robert e williamson jr
      December 19, 2022 at 19:06

      Great recall here Mr. DWBartoo. If your would be so kind as to allow me lean on your comment here Sir.

      I missed the damn cut off for Vijay Prashad’s The Petrodollars Long Goodbye, several paragraphs in Vijay refers to a trip William Simon took to Saudi Arabia in 1973 or 1974. While Vijay’s article is great I believe greater impact can be created with a significant addition of context.

      Enter Robert Baer and his SLEEPING WITH THE DEVIL, part One, SPEAK NO EVIL, Chapter 4, Saudi Arabia — Washington’s 401 (k) , pages 39-60.

      The addition of the historical text here (2003 was 19 years ago) from Baer’s book adds very significant power to the issues surrounding the Simon trip. So much so that the connection can be made now to just how difficult the of position the US has mired itself in.

      So what does has this to do with this ICC article by Ms. Cohn.

      It’s all about money, the greed in American politics, economics and foreign policy. The petro dollar.

      The dynamic has changed now considerably mostly because of the greed driving the American economy.

      I seriously doubt that without a significant “sea-change” in attitude of U.S. policy and the economic difficulties facing U.S. currently the ICC will not feel any particular inclination to bow to the will of the right wing neocon U.S. leadership or the extreme right wing fascist leadership of Israel.

      The Worm as they say is turning.

      “PAY BACK TIME” is here for the U.S. and Israel, unless I totally miss my bet here. I simply don’t see grid-locked Washington Politics as usual rising to the occasion. Best get ready.

      Thanks CN

    • robert e williamson jr
      December 19, 2022 at 19:50

      What I am describing earlier is a situation in which the American Society as a whole, except the very wealthy Sweats, will learn first hand what happens when your society is singled out to be held accountable for not forcing the corp government to do the right thing.

      Get ready to hear “..”no repeatedly, simply because no one cared to clean house when it was needed.

      Po-Joe, give yourself a break and free Julian

      Thanks CN

  3. Sally Mason
    December 17, 2022 at 17:12

    “but No Blue Eyed White, Caucasian American War Criminals.”

    Colin Powell (a ‘person of color’) has also not been prosecuted … for a history that if I remember correctly began with covering up of the Vietnam War’s My Lai massacre, to leading Bush Daddy’s Iraq War, to holding up his vial of washing powder as evidence to the UNSC in a fraud that killed well over one million sentient souls to launch Bush Junior’s Iraq War. I also do not see the deputies getting ready to bash in Gen. Austin’s door for the events of his time in office. Perhaps it is being the servant of Wall Street and the minion of American power that provides the immunity, and not the color of the skin?

    One of the great frauds of this age is getting ‘the left’ to accept right-wing monsters because they are ‘historic’ due to gender or skin color. There is not a person in Biden’s administration whom I would call ‘left of Reagan’, and yet the modern left cheers the historic nature of this government with not even a hint of opposing policies that Reagan would probably have considered to be far too extreme for his morning in America.

    Remember, Reagan was only joking when he said the bombing of Russia would begin in five minutes as a microphone test. And, when he was left alone in a meeting with Gorbachev then Reagan actually negotiated the abolition of nuclear weapons. Joe Biden is not joking and he would have a seizure at the very notion of a world without nuclear weapons. And the modern left will be happy that it is so ‘historic’ when a person of color (Gen. Austin) gives the order to ‘Launch!!!’ and destroy human society.

  4. Sally Mason
    December 17, 2022 at 16:43

    The ICC is not neglecting anything. The ICC’s job is to both attack the official enemies of ‘the west’ with various charges, while at the same time protecting the same nations and soldiers of ‘the west’ from any charges while they kill massive numbers of people and wreck nations and send refugees fleeing for their lives. This report says that the ICC is not neglecting its job, but is instead doing its job and expecting a annual review of ‘exceeding expectations’.

  5. LeoSun
    December 17, 2022 at 13:59

    “Never have so many been manipulated so much by so few.” Aldous Huxley

    – i.e., an “invisible” government (men/women we never see) are the true ruling power of our country, “the wolf speculates “there will be blood in the streets.” The fox knows, he’s got “blood on his hands.”

    IF, NOT the ICC, then WHO will prosecute war crimes & crimes against humanity? WHO will work to gain justice for victims of crimes that a Nation’s government refuse to?

    – “We have not seen any concrete step in this investigation, no action by the Prosecutor to break the vicious cycle of impunity. The situation on the ground is deteriorating year after year, month after month, day after day. We feel that we have been left alone in our struggle. And Palestinian victims are losing hope.”

    Concluding, it’s business as usual, “Half the world is at war or preparing for it or recovering from it. Moreover, a sizeable portion of the good people of the world are in political prisons of one kind or another, and a fourth are starving;

    AND, we are contemptuous not only of human life but all life on the planet, if not the universe; AND, we are in a kind of trap; AND, coldness of heart has become the dominant mode; AND, the life we force ourselves to lead is degrading;

    AND, almost all governments are inept and corrupt and brutal; AND, we live by delusion, AND, there is very little dignity left and very little awe; AND, we may perhaps indeed be evil or indifferent creatures altogether, as the cruel incendiaries among us have for centuries suggested;

    AND, in my own country, ugliness is apotheosized, and money is worshipped more than ever before; AND, we elect weasels to office; AND, we carefully destroy most of what is good from the past; and we murder and rape and thieve with ease; AND, we bore ourselves to death;

    AND, we either believe in dark and mindless things or pretend to be governed by systems and rules we neither understand nor believe in; and we hate the brain; and we are deeply pessimistic.

    ALTHOUGH, there are some pockets of resistance: we produce art and we are somehow great in medicine and astronomy; AND, we dance and write poetry;

    AND, we still live for the future; and for one drop of water, the thirsty among us would gather and weep.”
    GERALD STERN, “What I Can’t Bear Losing,” (A Memoir. Published 2004).

  6. December 17, 2022 at 12:11

    The United Nations is Bankrolled by the American Empire, is in New York City; Safely on American Soil. The ICC Prosecutes Black Africans and East European Loonies; but No Blue Eyed White, Caucasian American War Criminals. Since 1945 ,the Great American Empire has Killed Millions of Innocent Civilians with Complete Impunity, All Around the World. Nobody is Safe.

  7. Vera Gottlieb
    December 17, 2022 at 12:00

    How about it, ICC…how about growing a healthy pair of balls instead of continuously kissing the israeli touches?

  8. Robert Sinuhe
    December 17, 2022 at 12:00

    It should not be a surprise this is happening. The U.S. had a chance in 1948 when President Truman recognized the State of Israel. Virtually all the intelligence organizations of the U S. were against the move. Even George Marshall, FDR’s hugely popular military chief of staff threatened not to vote for him in the 1948 election if he did so. Fueled by the memory some call the Holocaust, public opinion unwisely supported the move. Much has happened since that time. In this time Jewish organizations, AIPAC chief among them, used their considerable influence in the Congress of the U.S. and elsewhere to turn things around to the point that any criticism of Jews and Israel is illegal. Thus, Israel can do anything it wants with impunity.

    • December 19, 2022 at 15:14

      Epstein didn’t come out of nowhere. I am sure his handlers have pictures of many government officials in compromising position. I wonder how many more Epsteins are around.

  9. DW Bartoo
    December 17, 2022 at 11:06

    Would it not be reasonable to consider that a certain powerful nation has informed every judge at the ICC that, under NO circumstance is that nation, or Israel, EVER to be threatened by the ICC or accused (or charged) by that court of “war crimes” or “crimes against humanity”, OR the judges and their family members might just come to regret such temerity in a very real and permanent existential sense.

    To ignore this reality is equivalent to
    saying that the UN does not kowtow to that same, let us be clear, hegemon which intends to dominate the world in
    what that nation terms the, “full spectrum”.

    Which includes threatening any court with severe consequence for making ANY effort to enforce actual justice upon the hegemon or its closest fellow proponents of profitable organized mayhem.

  10. David Thomas
    December 16, 2022 at 22:03

    How long will all this keep happening? Carl Jung predicted the first world war on the basis of individuality being suppressed. We are living in a time of the same oppression.

Comments are closed.