For years, Israel has denied that the International Criminal Court has jurisdiction over the Jewish state. After the Hamas attack, that changed.
When Palestinians have attempted to sue Israel for war crimes in the ICC in the past, Israel said the court was not legitimate
The exterior of the International Criminal Court is seen on March 17, 2023 in The Hague, Netherlands. Photo by Pierre Crom/Getty Images
Yousef Bashir November 15, 2023
The families of nine Israeli victims of the Oct. 7 attack have filed a complaint at the International Criminal Court alleging Hamas committed war crimes and acts of genocide. They are asking the ICC to issue international arrest warrants for Hamas’ leaders.
I empathize with their suffering and desire for justice. Yet it is painfully ironic that they brought their claim to the ICC, when the Israeli government insists unequivocally that the ICC has no jurisdiction over Israel. In March 2021, when the ICC prosecutor’s office finally launched an investigation into allegations of war crimes committed by Israelis in the West Bank, the Gaza Strip and East Jerusalem beginning in 2014, Prime Minister Benjamin Netanyahu called it “pure antisemitism.”
Palestinians have been seeking accountability through the ICC since 2009, when the Goldstone Report, issued from a U.N. fact-finding mission, found that “some of the actions of the Government of Israel might justify a competent court finding that crimes against humanity have been committed.” Palestinians have requested investigations of alleged war crimes in the West Bank and the Gaza Strip, including the 2014 Gaza conflict, Israeli settlement expansion and specific actions taken by the Israeli military and Israeli settlers.
The ICC process, however, has been faced with relentless opposition from Israel, which questions Palestine’s status as a sovereign state, and from the United States. When the March 2021 ICC investigation of Israeli war crimes was announced, Secretary of State Antony Blinken issued a statement saying that the U.S. is “firmly opposed” to it, and that because there is no state of Palestine, Palestinians cannot “delegate jurisdiction” to the ICC. Under Trump, the U.S. took steps to sanction Palestinians and freeze foreign aid, instead of working to provide a mechanism where Palestinians can bring forward complaints of international law violations committed by the state of Israel against all Palestinians, civilians, prisoners and militants.
As a Palestinian, an American, a Muslim and a human being, I believe that justice belongs to all, not some. I think we in the free world have an obligation and a duty to protect the right of justice for oppressed people everywhere. Israelis and Palestinians alike deserve peace, security and justice, and the ICC is an appropriate avenue to obtain these things when others have failed.
Even when Palestinians opt to take their complaints of Israeli violations to Israeli military courts, a system which solely governs Palestinians in the West Bank and not Jewish Israelis, they rarely find justice or accountability. Conversely, when Palestinians are defendants in Israeli military courts, the conviction rate is 99.74%, and exceptionally few cases are heard by courts in Israel proper. The ICC is one of the few avenues left to Palestinians to pursue their legal claims.
I know this from personal experience. My parents have spent countless hours, days, and months passing through Israeli checkpoints and risking their lives on the roads to get to Israeli courts in Tel Aviv or Jerusalem, only to return home without an answer, without justice. The Israeli army had severely damaged our home, demolished our farms, killed our animals, uprooted our olive and palm trees, shot and injured my father, intimidated my mother, shot and injured my brother, and finally shot me at close range before the eyes of three United Nations officers. These incidents are separate from the attacks we’d suffered since the early 1990s carried out by settlers, who lived at the former settlement of Kfar Darom until the disengagement from Gaza in 2005.
The U.S. under the Trump administration, in particular, cracked down on Palestinian attempts to seek justice. In 2018, I worked for the Palestinian General Delegation Mission to the United States, where I served as director of Congressional affairs. Along with my colleagues, I sought to improve communication between Ramallah and Congress. We even attempted to host a Christmas celebration on Capitol Hill to celebrate the birth of Jesus in the Palestinian city of Bethlehem. Instead, we all ended up losing our jobs when the Trump administration shut down the delegation’s office in Georgetown in response to Palestinian diplomatic efforts at the ICC and the United Nations.
Such abhorrent denial was not only a denial of Palestinian rights to justice, but a denial of the international community’s efforts to achieve the goal of accountability and justice for victims on both sides of the Israeli-Palestinian conflict, and of the ICC’s efficacy to uphold the law for victims of conflicts across the globe.
I do hope that the Israeli families of Hamas’ victims get their justice at the ICC, because I believe with all my heart that justice belongs to all. It is not a privilege but a guaranteed right under international law. Yet Israel must decide once and for all whether it is going to recognize the ICC’s standing, in all matters, not just the ones where it is the plaintiff.
To contact the author, email [email protected].
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