Palestine Becomes a State Party to the ICC: An Occasion to Return to the Register of Israel’s Racialized Violence

Today, Palestine will formally become a member of the International Criminal Court. This will give it the authority to refer a situation in its territory for investigation as well as give the Office of the Prosecutor the authority to initiate an investigation based on her discretion (propio motu). When Palestine, or the representatives of a shadow of a state, submitted an application for ad-hoc jurisdiction as well as acceded to the Rome Statute in late December 2014, analysts wrote a flurry of articles assessing the legal and political implications of an ICC investigation. I include some of those, including my own below. As I describe in my piece at the time:

The ICC will not be the site of adequate redress for Palestinians. The likely scenarios include: the court slowly killing the referral in the inaccessible and lengthy intricacies of its proceedings; Israel evading prosecution through complementarity; the prosecution of alleged crimes committed by Palestinians only; and investigation of Israel’s settlement enterprise preceded or complimented by prosecution of Palestinians. These possibilities range from abhorrent to tolerable. The ICC cannot be a destination in and of itself. It is simply one venue, and a complicated one at that, of many. Any courtroom, including the ICC, can only be effective if it is one part of a broader commitment and struggle for self-determination and justice.

Notwithstanding these dismal possibilities, it remains imperative to revisit the death and destruction wrought in the span of fifty days in the summer 2014. The court of public opinion matters far more than that of the ICC because crimes against humanity and war crimes are abhorrent to humanity well before states legislatively proscribe them.

Nearly nine months have passed since Israel launched its latest aerial and ground offensive against the besieged population of the Gaza Strip. Beginning on 7 July 2014, Israel deployed an arsenal of sophisticated and precision weapons technology to bombard and destroy the 365 square kilometer coastal enclave for fifty days. Israel ended its bombardment despite not being close to achieving its stated military purpose; an admittedly shifting goal that ranged from destroying Hamas to reducing its weapons cache to destroying the network of tunnels that gave Palestinian militants significant leverage during the ground offensive into the Gaza Strip. The campaign was cruel and indiscriminate.

Israel characterized all Hamas members, be they law enforcement officers, ambulance drivers, or armed combatants, as legitimate targets turning the principle of distinction meant to reduce harm to civilians on its head. Similarly, Israel deemed all infrastructure used by Hamas as a legitimate military target, be it the residence of a Hamas member sheltering his family in the night, a municipal building essential to governance, or a weapons storage facility thus disavowing a case by case assessment of the military advantage gained in the targeting of each building.

Beyond its manipulation of law, Israel deliberately attacked civilians. In Khoza’a, Israel forces shot to death fleeing civilians in the back. In Shujai’ya it launched a revenge offensive for the capturing of a soldier and massacred sixty-six civilians in the span of sixty minutes. It attacked UN facilities providing shelter to displaced civilians on seven different occasions. In one instance, UN officials provided Israel with its coordinates thirty-three times to ensure the safety of nearly one thousand civilians and Israel struck the UNRWA school nonetheless. It sealed the border to fleeing refugees and expanded its buffer zone east and west by forty-three percent thereby further concentrating Gaza’s 1.8-million person population. It issued confusing and inconsistent warnings that left civilians without adequate time to flee or anywhere to take safe refuge.

In light of these tactics, the results could only be devastating as indeed they were: 2,104 civilians including 504 children were killed; 1,500 children were orphaned; 18,000 homes were destroyed leaving 100,000 Palestinians homeless; nearly half a million Palestinians were internally displaced at the height of the war; 373,000 children are in need of psycho-social treatment; and 143 families lost three or more people.

Since the end of hostilities on 26 August 2014, little has improved in the lives of Palestinians in Gaza. The siege remains as tight as ever, fishermen cannot fish beyond three nautical miles of their Mediterranean shore, 830,000 families are dependent on food aid for survival, and forty-five percent of Gaza’s population is unemployed. Despite a global pledge of nearly 5.4 billion USD to rebuild the devastated enclave, only a fraction of the aid has been received and the rest is not likely to arrive any time soon. Worse, Israel remains in control of four of Gaza’s five border crossings and has severely limited the number of aid trucks and goods into the Strip. According to the Oxfam International, due to the blockade and at this rate, it will take another one hundred years to rebuild the Gaza Strip. Former President Jimmy Carter has warned that the failure to rebuild Gaza will result in another war.

The war on Gaza and Palestinians, writ large, never ended. It continues sometimes quietly by administrative means and still other times with explicit and deadly violence. This racialized and gendered violence should be registered regardless of how the ICC and its various state parties and stakeholders decide to proceed.

Below is a select list of reports completed to date registering the damage.

Articles on ICC Jurisdiction

Noura Erakat: Who is Afraid of the International Criminal Court?

Josh Ruebner: ICC Only Option Left for Palestine

Khaled Elgindy: The Real Reason Washington Should Worry About Abbas’ ICC Bid

David Luban: Palestine and the ICC: Some Legal Questions

Michael Kearney: What Would Happen If Palestine Joined the International Criminal Court?

Alex Whiting: Palestine and the ICC: An (Imagined) View from the Inside the Court

MERIP Roundtable featuring Darryl Li, Raja Khalidi, Mouin Rabbani, Mazen Masri, and myself: Palestine and the ICC

GMU Panel/Audio & Transcript (featuring David Luban, Meg DeGuzman, George Bisharat, Kevin Jon Heller):

Operation Protective Edge: Legal and Political Implications of ICC Prosecution

Reports on Operation Protective Edge