Fatou Bensouda, Chief Prosecutor of the International Criminal Court (ICC), has, once and for all, settled the doubts on the Court’s jurisdiction to investigate war crimes committed in occupied Palestine.
On April 30, Bensouda released a 60-page document diligently laying down the legal bases for that decision, concluding that “the Prosecution has carefully considered the observations of the participants, and remains of the view that the Court has jurisdiction over the Occupied Palestinian Territory.”
Bensouda’s legal explanation was itself a preemptive decision, dating back to December 2019, as the ICC Prosecutor must have anticipated an Israeli-orchestrated pushback against the investigation of war crimes committed in the Occupied Territories.
After years of haggling, the ICC had resolved in December 2019 that, “there is a reasonable basis to proceed with an investigation into the situation in Palestine, pursuant to article 53(1) of the Statute.”
Article 53(1) merely describes the procedural steps that often lead, or do not lead, to an investigation by the Court.
That Article is satisfied when the amount of evidence provided to the Court is so convincing that it leaves the ICC with no other option but to move forward with an investigation.
Indeed, Bensouda had already declared late last year that she was,
“satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip… potential cases arising from the situation would be admissible; and there are no substantial reasons to believe that an investigation would not serve the interests of justice.”
Naturally, Israel and its main Western accomplice, the United States, fumed. Israel has never been held accountable by the international community for war crimes and other human rights violations in Palestine. The ICC’s decision, especially if the investigation moves forward, would be an historic precedent.
But, what are Israel and the US to do when neither are state parties in the ICC, thus having no actual influence on the internal proceedings of the court? A solution had to be devised.
In an historic irony, Germany, which had to answer to numerous war crimes committed by the Nazi regime during World War II, stepped in to serve as the main defender of Israel at the ICC and to shield accused Israeli war criminals from legal and moral accountability.
On February 14, Germany filed a petition with the ICC requesting an “amicus curiae”, meaning “friend of the court”, status. By achieving that special status, Germany was able to submit objections, arguing against the ICC’s earlier decision on behalf of Israel.
Germany, among others, then argued that the ICC had no legal authority to discuss Israeli war crimes in the occupied territories. These efforts, however, eventually amounted to nil.
The ball is now in the court of the ICC pre-trial chamber.
The pre-trial chamber consists of judges that authorize the opening of investigations. Customarily once the Prosecutor decides to consider an investigation, she has to inform the Pre-Trial Chamber of her decision.
According to the Rome Statute, Article 56(b), “… the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence.”
The fact that the Palestinian case has been advanced to such a point can and should be considered a victory for the Palestinian victims of the Israeli occupation. However, if the ICC investigation moves forward according to the original mandate requested by Bensouda, there will remain major legal and moral lapses that frustrate those who are advocating justice on behalf of Palestine.
For example, the legal representatives of the ‘Palestinian Victims Residents of the Gaza Strip’ expressed their concern on behalf of the victims regarding “the ostensibly narrow scope of the investigation into the crimes suffered by the Palestinian victims of this situation.”
The ‘narrow scope of the investigation’ has thus far excluded such serious crimes as crimes against humanity. According to the Gaza legal team, the killing of hundreds and wounding of thousands of unarmed protesters participating in the ‘Great March of Return’ is a crime against humanity that must also be investigated.
The ICC’s jurisdiction, of course, goes beyond Bensouda’s decision to investigate ‘war crimes’ only.
Article 5 of the Rome Statute – the founding document of the ICC – extends the Court’s jurisdiction to investigate the following “serious crimes”:
(a) The crime of genocide
(b) Crimes against humanity
(c) War crimes
(d) The crime of aggression
It should come as no surprise that Israel is qualified to be investigated on all four points and that the nature of Israeli crimes against Palestinians often tends to, constitute a mixture of two or more of these points simultaneously.
Former United Nations Special Rapporteur on Palestinian Human Rights (2008-2014), Prof. Richard Falk, wrote in 2009, soon after a deadly Israeli war on the besieged Gaza Strip, that,
“Israel initiated the Gaza campaign without adequate legal foundation or just cause, and was responsible for causing the overwhelming proportion of devastation and the entirety of civilian suffering. Israeli reliance on a military approach to defeat or punish Gaza was intrinsically ‘criminal’, and as such demonstrative of both violations of the law of war and the commission of crimes against humanity.”
Falk extended his legal argument beyond war crimes and crimes against humanity into a third category. “There is another element that strengthens the allegation of aggression. The population of Gaza had been subjected to a punitive blockade for 18 months when Israel launched its attacks.”
What about the crime of apartheid? Does it fit anywhere within the ICC’s previous definitions and jurisdiction?
The International Convention on the Suppression and Punishment of the Crime of Apartheid of November 1973 defines apartheid as, “a crime against humanity and that inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination, as defined in article II of the Convention, are crimes violating the principles of international law, in particular the purposes and principles of the Charter of the United Nations, and constituting a serious threat to international peace and security.”
The Convention came into force in July 1976, when twenty countries ratified it. Mostly western powers, including the United States and Israel, opposed it.
Particularly important about the definition of apartheid, as stated by the Convention, is that the crime of apartheid was liberated from the limited South African context and made applicable to racially discriminatory policies in any state.
In June 1977, Addition Protocol 1 to the Geneva Conventions designated apartheid as, “a grave breach of the Protocol and a war crime.”
It follows that there are legal bases to argue that the crime of apartheid can be considered both a crime against humanity and a war crime.
Former UN Special Rapporteur on Palestinian Human Rights (2000-2006), Prof. John Dugard, said this soon after Palestine joined the ICC in 2015,
“For seven years, I visited the Palestinian territory twice a year. I also conducted a fact-finding mission after the Operation Cast Lead in Gaza in 2008, 2009. So, I am familiar with the situation, and I am familiar with the apartheid situation. I was a human rights lawyer in apartheid South Africa. And I, like virtually every South African who visits the occupied territory, has a terrible sense of déjà vu. We’ve seen it all before, except that it is infinitely worse. And what has happened in the West Bank is that the creation of a settlement enterprise has resulted in a situation that closely resembles that of apartheid, in which the settlers are the equivalent of white South Africans. They enjoy superior rights over Palestinians, and they do oppress Palestinians. So, one does have a system of apartheid in the occupied Palestinian territory. And I might mention that apartheid is also a crime within the competence of the International Criminal Court.”
Considering the number of UN resolutions that Israel has violated throughout the years – the perpetual occupation of Palestine, the siege on Gaza, and the elaborate system of apartheid imposed on Palestinians through a large conglomerate of racist laws (culminating in the so-called Nation-State Law of July 2018) – finding Israel guilty of war crimes, among others “serious crimes”, should be a straightforward matter.
But the ICC is not entirely a legal platform. It is also a political institution that is subject to the interests and whims of its members. Germany’s shameful intervention, on behalf of Israel, to dissuade the ICC from investigating Tel Aviv’s war crimes is a case in point.
Time will tell how far the ICC is willing to go with its unprecedented and historic attempt aimed at, finally, investigating the numerous crimes that have been committed in Palestine unhindered, with no recourse and no accountability.
For the Palestinian people, the long-denied justice cannot arrive soon enough.
PALESTINA
Since the catastrophic Arab failure in the 1948 and 1967 wars led to total Israeli control over historic Palestine, the Palestinians have been trying to recover their losses, but to no avail.
Refugees and prisoners in their own homeland, they have tried armed struggle and peaceful negotiations with equal vigour, but have failed to get justice or attain peace.
Both strategies entailed great sacrifice and major concessions, but ultimately neither led to the liberation of Palestine from Israeli domination.
Worse, Israel's appetite for expansion has grown with every Palestinian concession, and now its delusion of invincibility is driving it to illegally annex almost a third of what the Palestinians assumed would be their future state.
Regardless of whether it actually formalises its de facto annexation or not, Israel is already radically and unilaterally changing the reality on the ground.
So now what? What to do? What not to do?
It is important to remember that contrary to newspeak there is no "Palestine problem" but rather an "Israeli colonial problem" - the region's last colonial problem - and the Palestinians may prove to be its only solution.
Since its creation at the end of the 19th century, Zionism has mutated from arguably a legitimate Jewish national movement in Europe to a European colonial enterprise in the eastern Mediterranean.
It led, among other things, to a century-long conflict, multiple wars and hatred, fuelled by ethnic cleansing, dispossession and the displacement of millions of people.
Since then, increased Israeli colonisation, especially in the occupied West Bank, devolved into a reprehensible system of apartheid.
Interestingly, apartheid was born in South Africa in 1948, the same year the Palestinian catastrophe began, and it ended in 1994, a year before apartheid basically started in Palestine with the Oslo-II agreement, which divided the occupied territories into bantustans.
Like South Africa, Israel should be induced to produce its own FW de Klerk to end its apartheid. Such a leader would find the Palestinians ready to reconcile and together with Israel build a better future.
And like South Africa, this does not mean ending Israel. It means liberating Israel from its paranoid garrison mindset that sees hegemony as the only way to survive.
Considering we are all one human race, apartheid is ultimately about hegemony, despite its racial or other pretexts.
It follows that the struggle against apartheid must be a universal, indivisible struggle for justice and freedom - one that opposes anti-Semitism, as it does colonial Zionism.
But what shape and path should it take?
Palestinians have already begun to think about and debate new ideas to end apartheid, which deserve further study and development.
But before we get into what the Palestinians need to do, let us look into what they should not do.
Surrender is not an option. Do not even think about it.
Accepting the so-called "deal of the century" put forward by US President Donald Trump and his ally Israeli Prime Minister Benjamin Netanyahu is to surrender to Israeli hegemony. It means living in captivity in perpetuity.
Without surrender, there is no victory. As long as the Palestinians do not lose, Israel cannot win.
Refusing to give up or give in may not be easy, but it has proven effective in frustrating Israel's plans, and restraining certain Arab regimes' predilection for mischief.
Do not despair. Time and history are on your side.
It may not seem that way judging from Israel's visible confidence, (read arrogance), but even though it is a self-proclaimed country of "immigrants", it has been bleeding hundreds of thousands of emigrants, mostly to the US.
And a high 40 percent of Israelis are thinking of emigrating, as countless Palestinians risk their lives to reclaim their right of return.
It is the same story repeated over and over again. Most if not all colonial powers lost to the weaker indigenous population over the past century. So will Israel.
To that end, Palestinians have wisely framed their cause in legal terms and extracted many UN resolutions condemning Israel's violations of international law.
But international law does not deter the strong or save the weak, certainly not when the US flashes its veto at the mere mention of Israel.
Just do not depend on it. Depend on yourselves. And forget about the UN convening an international peace conference without American blessing.
Do not beat yourselves up too much. Be reasonable.
Yes, the Palestine Liberation Organization (PLO) has made its share of mistakes, but the Palestinians are not responsible for the contempt and incompetence of certain Arab regimes, or the cynicism of Western powers, especially the US appeasement of Israel.
And stop with the self-pity.
You cannot motivate and energise depressed people. It will not kill you to smile. The best laughs are those mixed with tears. There is much to dread, but there is much more to dream about.
Do not underestimate the moral weight of your cause in the Arab world and beyond, regardless of what the doubters say.
No matter how many dictators recognise Israel, a belligerent apartheid state will never achieve true legitimacy or security regionally.
Never.
Arabs see the struggle for justice in Palestine as a symbol and extension of their own fight for justice.
Syrians, Saudis, Yemenis, Egyptians and others may be engrossed in their own tragedies, as they must be, but polls consistently show that, collectively, Arabs see Palestine as their foremost cause in the struggle against colonialism.
Do not forget that.
Israel has always tried to separate Palestinians from Palestinians and the Palestinians from their Arab neighbourhood.
Do not allow it and do not engage in secret negotiations.
There are more than a few ways to connect and bridge the geographic divide.
As war and diplomacy come to a dead end, and as Israel dashes forward arrogantly grabbing and annexing more Palestinian land, speak up and do not let Netanyahu and Trump get off easy.
Try not to repeat the mistakes of the past.
Try not to look back. Look ahead. Look for a third way forward.
The lopsided peace process has been terribly divisive for the Palestinians. It is what asymmetrical peace processes do. Therefore, abandoning it must lead to some form of national unity.
The dreadful competition between the main political factions has thus far proven detrimental to national unity and elections have been no less divisive.
Instead of uniting against the occupation, the factions have been preoccupied with managing it.
While Fatah and Hamas continue to insist on holding onto their "strongholds", the separated bantustans in the West Bank and Gaza, some suggest the establishment of an overall political umbrella, perhaps a reformed and expanded PLO, to unite all the Palestinians around the undisputed cause of justice.
But this will require a new generation of Palestinians to step up and take over from the predominantly septuagenarian and octogenarian leadership to chart a fresh, new way forward.
All bureaucratic tasks and responsibilities, whether on the level of the National Authority or the municipalities should be left to technocrats, chosen on the basis of merit not partisanship.
This requires a great deal of maturity, ingenuity and dynamism.
Another interesting idea is for Palestinians to unite behind multiple strategies, instead of being divided behind one failed strategy of negotiations.
This tactical decentralisation means "popular mobilisation" where each Palestinian community should be able to design and embrace strategies of struggle according to its abilities and circumstances.
Palestinians in Gaza may want to retain their deterrence capabilities to defend against another Israeli assault, and Jerusalemites may want to strengthen their city's Palestinian presence and character.
Likewise, Palestinians in Israel may want to transform Israel's binationality from demographics to politics. The Palestinians in Jordan may want to work with Jordanians to block Israel's attempt to make their country the alternative Palestinian state. And the Palestinians in exile may want to promote the cause in foreign capitals. And so on.
These micro strategies should be continuously synchronised and synergised as integral parts of the national struggle for justice and liberation as a whole.
Palestinians should no longer be satisfied with passive "steadfastness". They need to reactivate and re-energise the popular base.
Comprising almost half the population between the Jordan River and the Mediterranean Sea, the Palestinians need to immunise themselves against persistent Israeli repression and marginalisation.
Palestinians need to offset Israel's new attempts at dividing and ostracising them by improving business infrastructure and economic life to help people endure.
They need to expand on one of their greatest recent achievements, namely institution building.
This entails deflating an inflated bureaucracy by ending corruption and nepotism and creating partnerships between the public and private sector to improve economic planning and infrastructure development.
Currently, one-third of the national budget goes to the security apparatus, more than both the health and education sectors receive. Given that it serves Israeli more than Palestinian security, there is no reason why it should continue to consume so much of the Palestinian budget.
Boosting national immunity is also about boosting individual immunity in everyday life.
And there is no immunity without national and personal dignity.
A Palestinian may be able to block or defy the humiliation of an Israeli soldier, but may still find him/herself powerless when humiliated by a fellow (armed) Palestinian. Such humiliation is emotional and leads to indifference, even betrayal. This must stop.
And there is no dignity without work. This means there needs to be job creation, the expansion of good productive employment, so that poor Palestinians are not forced to slave away at Israeli settlements.
Palestinians are some of the most educated people in the region. Modest investment in human capital could yield great national advantage in the long run.
As the PLO hedged its bets exclusively on the US-led peace process, it abandoned much of the international solidarity movement.
Today, Palestinians need to rebuild links to European, Latin American, African and other foreign solidarity movements. These would be essential for their struggle moving forward, just as they were in ending apartheid in South Africa.
Moreover, and unlike many forgotten indigenous populations, Palestinians are not alone. They are part of a vast Arab region, and can draw strength and solace from your Arab hinterland.
Palestinians also have a special connection to the Islamic world, much of which has suffered terribly from Western colonialism.
It is paramount to confront Israel's peddling of religious justification for its occupation with civic and universal, not religious, arguments.
All colonial enterprises of the past several centuries have used varying degrees of religious justification, and Palestine has been the focal point of interest for all three Abrahamic religions.
But treating Palestine as a "promised land" or "a waqf" turns the divine from a peacemaker to a real estate broker.
Palestine belongs to all its inhabitants, especially its indigenous people.
Winning Jewish support for justice and freedom in Palestine is imperative to dispel Israeli propaganda, and indispensable to roll back Israeli hegemony
Just as white people participated in the anti-apartheid movement in South Africa and in the civil rights movement in the US, Jews are indispensable in the struggle against apartheid in Palestine.
Throughout their history, Jews have been the victims of racism, suffering greatly from European anti-Semitism. And for long, they have been at the forefront in the fight against racism.
Last week, for example, I read an obituary titled, "Denis Goldberg Man of Integrity: South African Freedom Fighter, Anti-Zionist Jew, and True Mensch" written by Ronnie Kasrils, a prominent Jewish South African anti-apartheid activist about a comrade who had passed away. Reflecting on Goldberg's lifelong anti-racism struggle, Karsils emphasised: "As an anti-Zionist Jew he came to view Israel's colonial-racism as akin to apartheid South Africa."
I know many such people, having worked closely with Jewish academics, students, journalists, feminists, editors, publishers, lawyers, unionists, and activists on various progressive causes including that of free Palestine.
Palestinians must take down anyone who peddles anti-Jewish slogans in their name and build on increasing Jewish resentment towards an Israeli leadership that does terrible things in their name.
When former US presidential candidate Bernie Sanders accused Netanyahu of "reactionary racism" and grew even more popular in the process, it showed just how far the American Jewish community and the Democratic Party have gone, bearing in mind that most American Jews vote Democrat, not Republican.
Palestinians need to nourish this new spirit and synergy to counter the Israeli-inspired campaign equating anti-Zionism with anti-Semitism.
Anti-Zionism has nothing to do with anti-Semitism. After all, Just Jews were the first to oppose Zionism.
A new Palestinian-Jewish partnership must fight Israeli injustice tooth and nail, exposing the Israeli government's malign attempts to label movements like Boycott, Divestment, Sanctions (BDS) as anti-Semitic.
It is high time for a Palestinian-Jewish spring.
The evolution of this renewed struggle in its totality will determine the outcome - two states or one binational state, not the opposite.
The continuing debate about the singularity or duality of states is not only premature, it may prove divisive and debilitating.
Israel will certainly oppose a one-state solution with the same if not stronger determination it opposes a sovereign Palestinian state with.
The sooner the Palestinian leaders realise there are no short cuts or off-the-shelf solutions the better they will be prepared for the long haul.
That is why the Palestinian endgame should be justice and freedom. They are not only an attainable goal that everyone will rally behind, but also a prerequisite for peace and security in the region.
They require changing Israel's calculus, not defeating it, or destroying it, as Israeli leaders whine and warn.
This is how major powers gave up their colonialism and how South Africa ended its system of apartheid. They were forced to reconsider the calculus of gain and loss.
In this way, Netanyahu's & Gantz's Israel cannot have all the land and all the security. It cannot continue to live by the sword and preach Kumbaya to the Palestinians.
In short, it cannot have its cake and eat it too.
If history is any guide, Israel will end its occupation just as all colonial powers of the past century ended theirs.
The sooner the better for both Palestinians and Israelis.
Life under Occupation
BRASIL
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