Recent events in Gaza, Palestine, have brought the Israeli-Palestinian conflict to international attention once again. However, many sources are falsely naming the actions committed by Israel’s authorities. Israel has committed many such actions against the Palestinian people. These crimes, when properly documented, may amount to atrocity crimes that fall within the jurisdiction of the ICC. Unfortunately, the international reaction to the ongoing situation and persistent crimes, since 1948, has been inexistent. However, the ICC has finally authorized an investigation in the situation. Is it enough though? Are we receiving the honest truth or is the media twisting facts in accordance with an oppressive system? This article shall address the facts in an alternative matter and the possible scenarios that the ongoing investigation might lead to, in addition to suitable actions against oppressing human rights actions.
This op-ed is written from the judicial perspective of a Lebanese citizen.
The Israelis and Palestinians are both firing rockets. However, one side has one of the most advanced militaries in the world. Both sides are suffering heartbreaking casualties, but one side is suffering exponentially. Most of the rockets fired at traditional Palestine, what now is called “Israel,” were intercepted by a rocket interceptor called the “Iron Dome.” However, the missiles fired by the Israeli military were not intercepted, targeting thousands of shelter-less unarmed civilians. There is a severe power imbalance at play, a fact that often is obscured by how we choose to talk about it.
Some things are incredibly complex in our region and require a great deal of context; others are just wrong. For instance, one of the incidents of planned expulsion of Palestinians who have lived in the Sheikh Jarrah neighborhood for generations. This expulsion is currently tied up in the court system, with the foreign ministry calling it a “real-estate dispute.” It is worth noting that the United Nations Human Rights Commission has said that these expulsions would “violate Israel’s obligation under international law.” Sanitized terms in these wrongful situations, like “eviction” and “property dispute,” get on the nerves of people who live there. The threat of “eviction” is accurate only on a superficial level in the sense that one day you live somewhere, the next day you do not, and that change was not your choice. Unfortunately, this does not tell the entire story.
While these numbers are increasing by the minute, “Israel” has killed 227 Palestinians, 64 of them were children, injuring more than 1530. Their airstrikes have destroyed over 500 homes. More than 50,000 Palestinians are now homeless. In addition, strategic buildings that have no affiliation with Hamas have been grounded, including Al-Jalaa tower, a 12 story building that housed the offices of the Associated Press and Al-Jazeera, the MSF building which provides trauma and burn treatment to Palestinians in Gaza, the Ministry of Health building, the PCRF office, which provided free medical treatment to children in Palestine, the only COVID-19 testing lab, which means there is no way in detecting new cases, the Rosary Sisters School, and Gaza’s largest bookshop. There is now a 76% electricity deficit in Gaza due to “Israel’s” ongoing military attacks targeting infrastructure and electric/fuel plants. Moreover, roads leading to the hospital have been bombed, blocking ambulance access.
Even before the latest airstrikes, Palestinians in Gaza experienced daily violence due to “Israel’s” blockade, which creates severe shortages of life-saving medicine, food, electricity, and clean water. Marking the 73rd anniversary of the Nakba, where more than 750,000 Palestinians were ethnically cleansed from their houses during the establishment of the Zionist state in 1948. As a result, more than 400 Palestinian cities and towns were destroyed, producing one of the world’s largest refugee populations. In violation of international law, “Israel” bars these refugees from their right to return home. Over the years, this so-called state has proved that it attempts to erase Palestinian history by building on top of ethnically cleansed villages, oppressing peaceful protestors, and willfully killing Palestinians based on their religion. Seventy-three years later, “Israel” continues to systematically force Palestinians from their homes, including the neighborhood of Sheikh Jarrah. These years have been a prison sentence for Palestinians, wherever they are. Whether it is in traditional Palestine, where the UN granted Palestinian lands to these settlers, as if it is their property, or it is in occupied Palestinian territories.
All of these crimes were met with inaction from the international community. The UN Security Council had three emergency meetings this week on the current issue, amid the deadly Israeli offensive in Gaza, ending with no concrete outcome after the United States blocked joint statements calling for an immediate ceasefire. “Israel” has justified its targeting campaign as retaliation to rocket attacks by Hamas. These rockets responded to the forced displacement of Palestinians in Sheikh Jarrah and the Israeli attack of Al-Aqsa mosque during the Holy Month of Ramadan. However, over the years, Palestinian officials have tried to present the issue to the International Criminal Court (ICC), a permanent international court with jurisdiction over war crimes, crimes against humanity, genocide, and aggression, intervening only if a State Party to its Rome Statute is concerned. After years of trying to submit to the ICC an acceptance of the Court’s jurisdiction, Palestine acceded to the Rome Statute on January 2, 2015, with effect on April 1, 2015. After a preliminary investigation by the ICC prosecutor, which lasted around five years, the prosecutor announced a formal investigation. This investigation, however, shall only cover the 2014 Gaza war, Israeli settlements policy in occupied Palestinian lands, and the Gaza border protests that occurred in 2018 and 2019; leaving behind what happened decades ago
In this article, a small historic context shall be explained in order to help understand the magnitude of the crimes committed in Palestine, focusing on the Israeli crimes. Hamas has indeed committed crimes against civilians; however, the article shall not tackle this issue given the fact that they were established in 1987, long after “Israel” committed its crimes since 1948. Hamas’ actions do not justify settler colonialism, ethnic cleansing, illegal military occupation, and the blockade of millions of indigenous Palestinian civilians. “Israel” uses Hamas in an Islamaphobic way to manipulate the reality on the ground. In addition, Hamas does not represent every Palestinian. After that, the article shall address the ongoing ICC investigation by its prosecutor and what will be “Israel’s” crimes under International Criminal Law. Unfortunately, Palestinians have endured, and are still enduring, War Crimes and Crimes Against Humanity, two atrocity crimes committed by settlers and their oppressing and discriminating racial authorities. In the last part of the dissertation, the issue of actions that can be taken in response to these crimes shall be addressed in addition to a demonstration of why only wishing “peace” is an empty statement that robs Palestinians of their rights of freedom and decolonization and shields “Israel” from being held accountable for its ethnic cleansing, colonization, military occupation, international law, and human rights violations.
While looking into this situation, it is imperative to ask these eye-opening questions:
What are Israelis obscuring from their state establishment? Why is the proportionality of the use of force between the Palestinians and the Israelis so crucial in understanding the issue? Is the limited ICC investigation due to its temporal jurisdiction enough in this situation? How can there be peace without freedom? What can we do about it?
Sheikh Jarrah is Nothing New
What is happening in Sheikh Jarrah and Gaza has been happening for 73 years. The argument is not just over land between Muslims and Jews. Before the creation of “Israel” only 73 years ago, Palestinian Christians, Jews, and Muslims all peacefully co-existed in Palestine. Making the suffering of Palestinians seem like a religious conflict is factually incorrect. “Israel,” by saying that it is a religious conflict, is trying to conceal the fact that they did not exist before 1948, and they only exist because of Zionist terrorist groups who ethnically cleansed, massacred, and destroyed over 540+ Palestinian towns and villages. As well as their responsibility for the displacement of over 7.2 million Palestinian refugees, the largest refugee population in the world, and deny them their legal right of return. Saying it is a “religious conflict” denies Palestinians their right to liberation, freedom, and justice. “Israel” tries to minimize what is happening to a “religious conflict” to draw attention away from the fact they are a settler colony still in the process of brutally colonizing Palestine.
Palestine Continues to Suffer
Israelis and Palestinians are not just fighting over religion. They are not “fighting”; Israelis are the oppressors, the Palestinians are the oppressed; this situation is about anything but religion and has been going on for decades. The Palestinian Christian community is the oldest Christian community in the world. There are also Palestinian Jews, like the Samaritans, who reside in Nablus; both are oppressed by “Israel.” There is no “fighting”; there is only Israeli colonization, ethnic cleansing, military occupation, and apartheid. “Israel” tends to spread misinformation about its own short settler-colonial existence to conceal the reality on the ground. It is a lot easier to disassociate oneself from a situation that has been wrongfully minimized to a “religious conflict happening since the beginning of time.”
The term “colonization” gives the impression of the old empires and tribes. However, settler colonialism still exists in our present time, and “Israel” is an example of it. Settler colonialism is a type of colonialism that functions through the replacement of the indigenous populations with an intrusive settler society that, over time, develops distinctive sovereignty and identity. Settler colonial states include the United States, Canada, Australia, and South Africa, and settler colonial theory has been influential in understanding situations in places like occupied Palestine, as well as traditional Palestinian lands where the settlers and a significant part of the international community call it “Israel.”
According to the theory, settler colonizers come to stay; settler collectives intend to occupy and assert sovereignty over indigenous lands permanently. In addition, settler-colonial invasion is a structure, not a single event: settler colonialism perseveres in the ongoing elimination of the indigenous population and the claim of state sovereignty and juridical control over their lands. Despite notions of post-colonialism, settler-colonial societies do not stop being colonial when political allegiance to the founding homeland is severed. (Baker & Lowman, n.d.)
“Israel” is a settler colony that was only established in 1948 by ethnically cleansing, massacring, and destroying over 540+ Palestinian towns and villages. These Palestinian towns and villages were then renamed and repopulated by Jewish immigrants. Zionist terrorist groups, including the Haganah, Stern, and the Irgun, all facilitated the ethnic cleansing; they later became politicians in the Israeli government. Every Palestinian has been affected by the creation of the settler colony of “Israel,” either having family massacred, being or having family exiled or living under Israeli occupation or blockade. (Hassan, 2001)
The annals of Zionist history are full of leaders outdoing other leaders in insisting on the importance of military power and the role of force and terror in the building and safeguarding the Zionist state. In some of their writings and revelations, many Israeli generals, such as Ben Gurion and Menahem Begin, assert that violence and terror are the backbones of the plan to enforce the Zionist program. Furthermore, they are convinced that physical force is the only tangible political reality that carries weight and is significant in the affairs of nations.
The very principle of Zionism is to turn Jewry from a religious community into a nation and a state, to consider all the Jews of the world as belonging to that nation. However, unfortunately, this had led them to inevitable series of wars of expansion in order to conquer “living space.” The entire history of the aggressions and annexation in and beyond Palestine has followed from this relentless logic of political Zionism.
When World War I ended, back in 1918, the British took power over Palestine. The League of Nations then issued a British mandate for Palestine – a piece of paper that gave Britain administrative authority over the region and incorporated provisions for establishing a Jewish national homeland in Palestine. The Jews back then only constituted 8.1% of the entire population. In 1947, Jews started to emigrate from all parts of the world to Palestine, the Jewish population grew only to be 32%, the United Nations proposed a scheme to partition Palestine into two sections: an independent Jewish state and an independent Arab state. Jerusalem, which was declared capital by both Jews and Palestinians, was to be an international territory with a special status.
In May 1948, not more than a year after the Partition Plan for Palestine was initiated, Britain withdrew from Palestine, and “Israel” proclaimed itself an independent state, implying a willingness to implement the Partition Plan. (History.com Editors, 2021)
From 1947-1948, the number of Palestinians murdered during the “Nakba” or the Catastrophe by Zionist terrorist groups is not exact, as to this day, mass graves of Palestinians are still being found in “Israel.” The Nakba is the result of establishing the Jewish majority state in a land that had more than 2/3 of Arab majority. Given those demographics, expulsion was always considered vital to the creation of that state; it was the logic of Zionism. It is estimated that over 100,000 Palestinians were murdered. Zionist groups massacred Palestinian children, the elderly, and unarmed, defenseless civilians. Over 750,000 Palestinians were also forcibly displaced from their homes and lands. For example, on April 9, 1948, Deir Yassin, a village near Jerusalem, was brutally attacked by Zionist militias. They completely de-populated the village, massacring all who dared to stay put in their homes by forcing them out of their houses and lining them up before carrying out their execution. These terrorist organizations also burned out Palestinian houses with their resident families still inside. All Arab properties that were abandoned during this ethnic cleansing were seized and confiscated by Zionist groups.
Between the years 1949 to 1956, it is estimated that Israelis shot and killed between 2,000 to 5,000 people who attempted to cross back from neighboring countries to Palestine. In addition, thousands of Palestinian refugees attempted to cross the border, searching for family members, attempting to return to their homes and retrieve their lost possessions. In 1953, “Israel” committed the most infamous reprisal massacre in the West Bank in the village of Qibya, where 45 homes were blown up, and at least 69 Palestinians were killed.
In a war with Egypt, Syria, and Jordan, known as the 1967 War, or the June War, “Israel” carried out what came to be known as the “Naksa,” meaning setback or defeat, to the armies of the neighboring Arab countries, and to the Palestinians who lost all that was left of their homeland. The Naksa was the prolonged version of a prior central event that paved the way for the 1967 war, the Nakba. In 1967, Israel absorbed and englobed the whole of historic Palestine, which includes the West Bank, East Jerusalem, and the Gaza strip, and added the Egyptian Sinai Peninsula and Syrian Golan Heights. Eventually, when that war ended, “Israel” had bushed out another 300,000 Palestinians from their homes, including the 130,000 that were displaced in 1948, and gained territory that was three and a half times its size. Some claimed that “Israel” had “unfinished business” for not succeeding in seizing the whole of historic Palestine in the 1948 war. On the night of the 1967 attack, Israeli minister Yigal Allon stated: “In … a new war, we must avoid the historic mistake of the War of Independence  … and must not cease fighting until we achieve total victory, the territorial fulfillment of the Land of Israel.”
Throughout the war and under the command of Yitzhak Rabin – who later became Israel’s prime minister – Israeli forces destroyed and ethnically cleansed several Palestinian villages, expelling some 10,000 Palestinians. Between the most flagrantly wiped out villages were Imwas, Beit Nuba, and Yalu.
In the Palestinian West Bank cities of Qalqilya and Tulkarem, the Israeli army systematically destroyed Palestinian homes. About 12,000 Palestinians were forced out of Qalqilya alone as a means of “punishment,” military commander Moshe Dayan reportedly wrote in his memoirs. The most significant majority of the newly displaced Palestinians sought refuge in Jordan. Most crossed into Jordan through the river and did so on foot with very few belongings.
In six days, “Israel” added more than one million Palestinians under its direct control in East Jerusalem, the West Bank, and the Gaza Strip. The 1967 war made “Israel” the country with the most prominent Palestinian population. Moreover, the war let loose the settler movement; a young generation of zealous Zionists decided to set up houses in the West Bank and Gaza, occupied lands that are not part of the state of “Israel.”
More essentially, the war opened up the question of the Zionist movement’s colonial character. Instead of exchanging land for peace, following UN Resolution 242 that called on Israel to yield the lands in exchange for peace with its neighbors at the end of the 1967 war, Israel started encouraging its citizens to move into the territories it occupied and supporting them as they did so. “Israel,” in direct breach of international law, began building illegal settlements for its citizens on land it does not own.
Palestine has been illegally militarily occupied by “Israel” since 1967, which marks 54 years of Israeli military occupation that is the longest in modern history. “Israel” illegally annexes East Jerusalem and various parts of the West Bank, declaring them part of their state, in a move that was never approved by the international community. The remaining of the occupied Palestinian territories of the West Bank and Gaza strip, home of 5.1 million Palestinians, are still under Israeli military control under the excuse of security. Their lives have been controlled by hundreds of military checkpoints, a color-coded permit system, and a separation wall that has divided families.
Settlements accompanied by roads and infrastructure built, especially for the settlers, control 40 percent of the West Bank’s surface area. Intrinsically, Israel has created an apartheid reality in the Palestinian territories where Palestinians and Israelis live under a system that racially privileges Jews over non-Jews. (Tahhan, 2018).
In addition, Gaza is under Israeli military blockade since 2007 on air, land, and sea. Gaza possesses a wealth of natural resources, including rich fishing grounds, fertile agricultural land, and large offshore natural gas reserves. Gaza’s wealth is mainly unattainable as a direct result of “Israel’s” occupation and blockade. Most of the agricultural land is located in places declared closed military areas or demolished during military assaults. The Israeli navy controls access to traditional fishing grounds. The Israeli government prohibits the development of natural gas reserves. All of this while the transition of people into and out of Gaza is strictly restricted, and both the import of products and the export of goods from Gaza is strictly limited. Military assaults over the last 16 years have also resulted in the near-complete demolition of Gaza’s business and manufacturing base. Consequently, the unemployment rate among Gaza’s 1.7 million residents is over 38%, and poverty rates are even higher. Over 80 percent of the population is now dependent on international assistance for survival. (American Friends Service Committee, n.d.)
Israel’s Disproportionate Use of Force Against Palestinians
There are only two exceptions to the prohibition of the use of force: actions under Chapter VII of the United Nations Charter and the inherent right to self-defense (like in response to armed attacks or an imminent threat of one). The right to self-defense is often called on by “Israel” to justify its operations in the occupied Palestinian territories; however, as the occupying power, “Israel” cannot justify this right against those it is obliged to protect according to International Humanitarian Law (IHL), or the law that regulates armed conflicts and wars.
As an occupied people, Palestinians are protected persons under Article 4 of the Fourth Geneva Convention, and as such, must be protected against all acts of violence and threats and “shall at all times be humanely treated,” as enshrined in Article 27 of the same convention. As regulated by the law enforcement standard, these policing activities that aim to restore order cannot be carried out by “Israel” in the same way as hostilities against combatants during the armed conflict but must be dictated by different human rights laws and regulations. Under this paradigm, live ammunition is only allowed as a last resort, and therefore the use of lethal force by Israeli forces, including the military, in the West Bank is only justified when there is a substantial and imminent risk to life. Moreover, Article 147 of the Fourth Geneva Convention establishes that “willfully causing great suffering or serious injury to the body” is a grave breach of the convention and could amount to a war crime under the ICC statute. (ICRC, Rule 156 of Customary IHL, n.d.)
Palestinians in the occupied territories and traditional Palestine are entitled to the basic rights of protected persons in addition to their fundamental human rights. As stated in Article 3 of the Universal Declaration of Human Rights (UDHR), “Everyone has the right to life, liberty, and security of person.” Barring torture and ill-treatment is also a well-established principle of International Human Rights Law (IHRL), protected in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by Israel in 1991. The participation in protests and demonstrations, Palestinians are exercising their right to resist, as well as their rights to freedom of peaceful assembly and association and their right to freedom of opinion and expression as stated in Articles 19 and 20 of the UDHR. While a general right to resist unlawful actions by legitimate means and methods is not explicitly recognized by international law in a specific provision, it is inferred from customary law, UN General Assembly (UNGA) declarations, and other provisions. For example, UNGA resolution 3070 in 1973 upheld “the legitimacy of the peoples’ struggle for liberation from colonial and foreign domination and alien subjugation by all available means, including armed struggle,” specifically refers to the Palestinian people. (UNGA, 1973) Many other UNGA resolutions have reaffirmed the right of Palestinians to resist.1
International law gives states a significant amount of discretion and power regarding how they want to set up their law enforcement mechanisms and ensure the maintenance of law and order. However, regardless of the system used, every state must respect and abide by its obligations under IHRL, meaning that domestic legislation, policies, and practice must comply with the relevant international law provisions and standards. The resulting ongoing violence is made possible by implementing policies of suppression of resistance through excessive, and often lethal, use of force and the impunity enjoyed by the Israeli occupying forces. This reality has had a severe impact on Palestinians, as it directly violates fundamental rights such as the freedom of assembly, expression, and, more generally, Palestinians’ right to resist, which is enshrined in UNGA Resolution 3070. (al-Orzza & Auer, 2017)
UN agencies, local and international human rights groups, and others have recorded a pattern of war crimes and other grave violations of international law – both international humanitarian law and international human rights law in addition to international criminal law– committed by the Israeli military and security forces since they occupied the West Bank, including East Jerusalem, and the Gaza Strip in 1967. Moreover, Palestinians affected by the abusive use of force and firearms or their legal representatives have been denied helpful access to an independent process, including judicial process, contrary to UN law enforcement standards. The failure to conduct effective and independent investigations and take corrective action has weakened the rule of law and deprived justice to the victims. Moreover, extending impunity to the perpetrators has served to encourage further abuses. Soldiers and other security force personnel have seldom been prosecuted at all in connection with the killings of Palestinians in the occupied Palestinian territories, although many appear to have constituted illegal killings, and convictions have been even rarer. Whenever they have happened, soldiers have been convicted of manslaughter or lesser offenses. (Amnesty International, 2014)
The Israeli human rights organization Yesh Din stated that from September 2000 until June 2013, only 16 investigations into killings of Palestinian civilians by Israeli forces led to indictments; 21 soldiers were indicted for murdering 18 Palestinians and one British national. Seven of the 21 soldiers were convicted by military courts for offenses to the killing of the British national and five of the Palestinians. In addition, four soldiers were convicted of negligent manslaughter, one soldier was convicted of manslaughter (in the case of the British person), and another was convicted of negligence. However, none of the convicted soldiers was discharged from the army, and all served extremely short prison sentences ranging from one to seven months. Two soldiers were convicted in military courts for offenses related to the obstruction of justice in cases relating to the killing of Palestinian civilians. (Yesh Din, 2013)
Moreover, the organization published figures showing that about 80% of the complaints filed by Palestinians concerning harm by soldiers are closed without a criminal investigation. Amid the few launched investigations, only 3.2% result in the prosecution and indictment of the soldiers responsible. This implies that the chances a complaint filed by a Palestinian will be adequately investigated and result in an indictment is less than one percent (0.7%). These figures portray significant flaws in the law enforcement system and its profound failure to protect Palestinians. (Yesh Din, 2021)
In order to clarify the vast gap in the disproportionality of the Palestinian resources and the Israelis, it is imperative to point out that Palestine is a state with NO army, in contrast to “Israel’s” ground forces of 1,554,186 personnel and several technologies developed in “Israel.” These include the Merkava main battle tank, Achzarid armored personnel carrier, Iron Dome missile defense system, Trophy active protection system for vehicles, and the Galil and Tavor assault rifles. Palestinians have neither a navy nor an air force to protect themselves from the Israelis in contrast to their 20,000 navy personnel with 64 battleships and Sa’ar 5-class missile corvettes and to their 89,000 air force personnel with 684 aircraft including A-4 Skyhawk, F-4 Phantom II, F-15 Eagle, F-16 Fighting Falcon, and F-35 Lightning II. In addition, the Palestinian military budget is zero$/annum; on the other hand, the Israeli military has a budget of $20.5 Billion/annum (plus $146 Billion US Military Aid to Israel to date) and possess weapons of mass destruction, including 80-400 nuclear warheads.
As for what is happening now in occupied East Jerusalem neighborhood Sheikh Jarrah, eight Palestinian families, approximately 75 Palestinians in total, are at risk of ethnic cleansing by “Israel” to move Israeli settlers into their homes. “Israel” is currently attempting to ethnically cleanse the Palestinian population of Sheikh Jarrah and replace them with Israeli settlers in order to outnumber the Palestinian demographic of Jerusalem. Israelis view Palestinians as a demographic threat to their settler-colonial expansion and existence, so they deny Palestinian towns and villages, builds illegal settlements and upholds an apartheid regime that keeps Palestinians within Israel inferior and with fewer rights than Israelis’.
Nahalat Shimon International, a settler company, has filed lawsuits in order to seize the homes of dozens of families in Sheikh Jarrah employing inherently discriminatory laws, such as the Legal and Administrative Matter Laws as well as the Absentee Property Law of 1950, to confiscate Palestinian property and transfer it to settler groups. (UN News, 2021) Forcible transfer of an occupied population is prohibited under international humanitarian law and constitutes war crimes according to the Rome Statute of the ICC.
It is incorrect to address what is happening as “Clashes.” Instead, to correctly call what is happening for what it is: Israeli settler-colonial terrorism. Palestinians from all over Palestine are peacefully protesting what is happening in Sheikh Jarrah because each one of them can empathize with the Palestinian families on the verge of being ethnically cleansed. This is because every “Israeli” town and city was once Sheikh Jarrah.
The current peaceful protests are being met with brutal and disproportionate force from Israeli settler-colonial forces. They use stun grenades, spraying malodorant (illegal skunk water), and shooting at unarmed protesters, worshippers, children, and anyone they thinks is Palestinian. The Israeli forces use rubber bullets, just like regular bullets; they have a metal core and are just coated in rubber. They can still kill people, as well as causing severe injury and leading to many Palestinians they shot at becoming blind. “Israel” also tends to use regular bullets as well. The Israeli settler-colonial forces are also protecting far-right Israeli settlers who are lynching Palestinians.
The International Community Stands Idly By as Israel Oppresses Palestine
“Israel” is an apartheid settler-colonial state, and instead of protecting its Palestinian of 48’ citizens from lynching, they protect the perpetrators. Human Rights Watch, the United Nations, and B’Tselem – an Israeli human rights organization – have all released damning reports that “Israel” is an apartheid settler colony. Whilst it also is imposing a brutal illegal military occupation. This past week fanatical far-right settlers have celebrated a fire at Al-Aqsa mosque – dancing and hoping it would burn down, they have been destroying Palestinian businesses, breaking into Palestinian houses, attempting to steal Palestinian houses, and they have been lynching Palestinians. In addition, Gaza has been under an inhumane, illegal military blockade by “Israel” since 2007. Total land, air, sea siege, and no one can leave or enter. In the past decade, “Israel” has subjected Gaza to three massacres and is about to subject it to its fourth.
The international community meets all of this with inaction, and I say “inaction” because condemning is not an action and results in no tangible aid. However, the International Criminal Court’s Prosecutor, Fatou Bensouda, initiated an investigation on the matter . Needless to say that prosecuting a small number of crimes that happened in the past in Palestine does not halt the crimes happening today. Therefore, there lies a humanitarian duty to speak up and come up with a solution to end the impunity going on for far too long.
Limited International Criminal Court Investigation
On March 3, 2021, the Office of the Prosecutor ICC confirmed the initiation of an investigation respecting the Situation in Palestine. This investigation will cover crimes within the jurisdiction of the Court – war crimes, crimes against humanity, genocide, and aggression – that are alleged to have been committed in the situation since June 13, 2014, the date to which there was a referral by the Palestinian state, after numerous tries over the years, to the office of the prosecutor.
The decision to open an investigation was after a preliminary examination undertaken by the Office of the Prosecutor that lasted about five years. During that period, the prosecutor engaged with a wide array of stakeholders, including in regular meetings with representatives of Palestine and “Israel”, respectively.
Based on their deliberations, they knew that one issue we would need to have resolved concerning the territorial scope of the Court’s jurisdiction in the Palestinian situation. Therefore, the prosecutor’s office sought a ruling on the question to chart the course of any future investigation on a sound and judicially tested foundation.
Therefore, on December 20, 2019, aware of the complex and novel issues arising in this situation, the prosecutor announced that she would be making a request to the Judges of Pre-Trial Chamber I for a ruling to clarify the territorial scope of the Court’s jurisdiction in the Situation in Palestine. Accordingly, in the request of January 22, 2020, the prosecutor set out its legal position but encouraged the Chamber to hear arguments and views from all stakeholders before deciding the jurisdictional question before it.
On February 5, 2021, the Chamber decided that the Court is allowed to exercise its criminal jurisdiction in the Palestinian situation and that the territorial extent of this jurisdiction includes Gaza and the West Bank, including East Jerusalem. In its ruling, the Chamber stressed that it was not deciding whether Palestine fulfilled the requirements of statehood under public international law, or settling a border dispute, or prejudging the question of any future borders; it was only determining the scope of the Court’s territorial jurisdiction for the purposes of the Rome Statute, as requested. It was stressed that such matters remain to be determined in bilateral discussions between Palestinian and Israeli authorities in the context of a negotiated agreement. (Bensouda, 2021)
“You take my water, burn my olive trees, destroy my house, take my job, steal my land, imprison my father, kill my mother, bombard my country, starve us all, humiliate us all,
I am to blame: I shot a rocket back.”— The Palestinian Condition
The Chamber was unanimous in its view that Palestine is a State Party to the Rome Statute. It also ruled that Palestine’s referral of the situation obliged the prosecutor’s office to open an investigation; the prosecutor has determined that there existed a reasonable basis to follow the Rome Statute criteria.
In a most recent report by Human Rights Watch, released on April 27, 2021, the organization’s 213-pages report accuses “Israel” for the first time of “apartheid and persecution,” as defined by international conventions and the Rome Statute of the ICC. It states that throughout most of the occupied Palestinian area, “Israel” is the sole governing power; in the remainder, it utilizes primary authority alongside limited Palestinian self-rule. Claiming these areas, Israeli authorities systematically privilege Jewish Israelis and discriminate against Palestinians in most aspects of life. Policies, laws, and statements by leading Israeli officials make it evident that the objective of maintaining Jewish Israeli control over political power, demographics, and land has long guided government policy. In seeking this goal, authorities have confined, dispossessed, forcibly separated, and subjugated Palestinians by virtue of their identity to varying degrees of intensity. In certain regions, as described in this report, these deprivations are so grave that they amount to the crimes against humanity of persecution and apartheid.
ICL has developed two crimes against humanity for situations of systematic discrimination and repression: apartheid and persecution. Following these laws, the State of Palestine is a state party to both the Rome Statute and the Apartheid Convention. Both give precise definitions of these situations where the ICC investigation must look into, especially when national authorities are unable or unwilling to pursue them according to the principle of Complementarity.
Crimes against humanity comprise specific criminal acts committed as part of a widespread or systematic attack or acts committed pursuant to a state or organizational policy directed against a civilian population. The crime against humanity of apartheid is defined in the Apartheid Convention as “inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.” The ICC’s Rome Statute adopts a similar definition: “inhumane acts… committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.” However, the Rome Statute does not define what makes up an “institutionalized regime.”
Among the inhumane acts stated in both the convention and the Rome Statute are “forcible transfer,” “expropriation of landed property,” “creation of separate reserves and ghettos,” and denial of the “the right to leave and to return to their country, and the right to a nationality.”
In order to further explain how the Israelis are committing these crimes, it is essential to point out that two primary groups live today in “Israel” and the occupied Palestinian territories: Jewish Israelis and Palestinians. One primary ruler, the Israeli government, governs over them. A stated aim of the Israeli government is to make sure that Jewish Israelis sustain domination across “Israel” and the occupied Palestinian lands. The Knesset in 2018 ordained a law with a constitutional status asserting “Israel” as the “nation-state of the Jewish people,” claiming that within that land, the right to self-determination “is unique to the Jewish people,” and setting up “Jewish settlement” as a national value. In addition, Israeli authorities have embraced policies aimed at mitigating what they have publicly described as a demographic “threat” that Palestinians pose to maintain Jewish Israeli control. These policies include limiting the population and political power of Palestinians, giving the right to vote only to Palestinians who live inside the borders of traditional Palestine or “Israel” as they existed from 1948 to June 1967, and limiting the capability of Palestinians to move to “Israel” from occupied Palestine and from anywhere else to “Israel” or the occupied territories.
Other steps are taken to secure Jewish domination, including a state policy of “separation” of Palestinians between the West Bank and Gaza, which stop the movement of people and goods within the occupied Palestinian territories, and “Judaization” of areas with significant Palestinian populations, including Jerusalem as well as the Galilee and the Negev in traditional Palestine.
To execute the goal of domination, the Israeli authorities institutionally discriminate against Palestinians. In the occupied Palestinian territories, which “Israel” has recognized as a single territory encompassing Gaza and the West Bank, Israeli authorities treat Palestinians unequally and separately compared to Jewish Israeli settlers. In addition, in the occupied West Bank, “Israel” put Palestinians through draconian military law and enforces segregation, largely denying Palestinians from entering settlements. In the blockaded Gaza Strip, Israel imposes a generalized closure, sharply restricting the movement of people and goods. In annexed East Jerusalem, which Israel regards a part of its sovereign territory but is still occupied territory under international law, Israel provides the large majority of the hundreds of thousands of Palestinians living there with a legitimate status that weakens their residency rights by constraining them on the individual’s connections to the city, as well as other factors. The level of discrimination amounts to systematic oppression.
Based on its research, Human Rights Watch concluded that the Israeli government had shown an intent to maintain the domination and control of Jewish Israelis over Palestinians across “Israel” and the occupied Palestinian territories. In these lands, including East Jerusalem, that intent has been accompanied by the systematic oppression of Palestinians and inhumane acts committed against them. Whenever these three elements occur together, they amount to the crime of apartheid. (Human Rights Watch, 2021)
Palestinian armed groups committed war crimes as well, including indiscriminate rocket attacks fired on Israeli population centers (Human Rights Watch, 2007), but “Israel’s” attacks exceeded striking those responsible. Beyond the thousands killed or injured, Israeli attacks have destroyed tens of thousands of structures and critical infrastructure, including hospitals, schools, homes, and Gaza’s only power plant, causing considerable harm to civilian life that has lasted for years afterward. (Human Rights Watch, 2014) The 2014 hostilities alone entirely destroyed or heavily damaged about 18,000 residential units, with more than 100,000 people left without a home, according to B’Tselem. (B’Tselem, 2019) In July 2019, around 8,200 people remained internally displaced due to 2014 hostilities, according to the United Nations Office for the Coordination of Humanitarian Affairs (OCHA). (OCHA, 2019) In January 2019, former Israeli army chief-of-staff and current Alternate Prime Minister and Defense Minister Benjamin Gantz said that these assaults “sent parts of Gaza back to the Stone Age.” (Wootliff, 2019)
On the other hand, the International Court of Justice cited with approval of the UN Security Council resolution 446 (1979) calling upon “Israel,” as the occupying power, to abide scrupulously “by Geneva Convention IV and not to transfer parts of its own civilian population into the occupied Arab territories.” The Court also referred to Security Council resolution 465 (1980), which described Israel’s policy and practices of settling parts of its settler population and new immigrants in the occupied territories “as a flagrant violation” of the convention. (ICJ, 1967, paragraph 120) Affirmation of the illegality of Israel’s settlement policy and practice has been widespread, repetitive, and consistent. The legal opinion of the US State Department on Israel’s settlement policy, as stated in 1978, was that the establishment of the civilian settlements in those territories is inconsistent with international law. (Hansell, 1978, page 777–779)
The Rome Statute
In Article 8 of the Rome Statute, War Crimes are committed “as part of a plan or policy or as part of a large-scale commission of such crimes.” The article mentions that certain acts constitute war crimes given they are perpetrated within the prerequisite condition stated above; these acts, to name a few relating to the Palestinian situation, stated in Article 8(2)(a):
- Willful killing. Numerous events portray the unimportance of Palestinian human life by Israeli settlers and military personnel. Recent events in small occupied villages have unfolded how the “civilian” settlers are heavily armed and protected by the Israeli military forces. These “civilians” aimed, shot, and killed many Palestinians in the past two weeks, while Israeli police watched and protected them.
- Torture or inhuman treatment, including biological experiments. The Israeli military is not shy about what it does to its detainees. Blindfolding and terrorizing peaceful protesters, children, and harmless civilians are a way of bloating on Israeli social media.
- Willfully causing great suffering or serious injury to body or health. For example, Human Rights Watch approached the recent discrimination between Israelis and Palestinians in the vaccination process against COVID-19, where the occupying power denied 5 million Palestinians from the vaccine. (Human Rights Watch, 2021) This directly causes great suffering to an already over-populated Gaza Strip, as well as other Palestinians in the occupied territories.
- Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. For example, Israeli authorities demolished 729 Palestinian buildings in 2020. (Anadolu Agency, 2021)
- Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial. This was stated and recorded numerous times over the year, such as Amnesty International, in its 2014 report.
- Unlawful deportation or transfer or unlawful confinement. The Israeli authorities are infamous for their systematic policy on illegally transferring Palestinians from their homes and the unlawful confinement of peaceful protesters and children, such as Ahed Al-Tamimi, who was then 16 years old, sentenced to eight months of prison.
In addition, article 8(2) (b) states other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
- Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities. Such as the Israeli bombs targeting civilian building complexes in Gaza, killing over 200 civilians, including 60 children; the numbers are increasing by the hour.
- Intentionally directing attacks against civilian objects, that is, objects which are not military objectives, such as the al-Jalaa tower, home to the local offices of al-Jazeera and Associated Press news agency in Gaza.
- Intentionally directing attacks against personnel, installations, material, units, or vehicles involved in a humanitarian assistance or peacekeeping mission following the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict. Such as the Israeli air raid that hit the Qatari Red Crescent Society (QRCS) office in Gaza, killing two Palestinians and wounding ten others on Monday, May 17, 2021.
- Intentionally directing attacks against buildings dedicated to religion, education, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not military objectives. Such as the al-Aqsa mosque in Jerusalem, when Israeli authorities attacked the worshipers during the Holy month of Ramadan this year, leaving hundreds of people injured.
- The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory. This has happened for years within traditional Palestine and the occupied territories, most recently attempting to do so in the Sheikh Jarrah neighborhood.
Unfortunately, the list of violations and crimes goes on.
Although the ICC only has jurisdiction to look into settlement policies undertaken in Palestine’s lands since April 1, 2015 (when Palestine’s accession to the ICC entered into force), the ICC Prosecutor would be able to consider “Israel’s” activities before the date if she concludes that it amounts to an ongoing crime that falls under the ICC jurisdiction. These settlement activities that aim at the annexation of occupied Palestinian lands appear to fall squarely within the Rome Statute, which define war crimes as serious violations of customs and the laws applicable in international armed conflict when committed as part of a plan or policy which extend to “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies…” (Rome Statute, Article 8(2)(b)(viii)) “Israel,” as stated many times, is an occupying power. This is affirmed and reaffirmed by many judicial bodies such as the European Court of Justice, which decided that “Israel’s” presence in the West bank was that of “an occupying power” and “not… a sovereign entity” in a case on the mislabeling of settlement products in the European Union. (Grand Chamber of the European Court of Justice, 2019)
Speaking up for Palestine, for Humanity, Against Israel, Against Apartheid
Criticizing a nation is not equal to critiquing a religion. Many pro-Israelis have accused Palestinian rights supporters of being anti-Semitic. However, the aim of criticizing the far-right government violations in “Israel” is to highlight their disrespect of international law and the lives of each and every Palestinian. This has been going on for far too long, and the international community’s response has been misguided, to say the least. There is a need for a reorientation of the actions that can be taken to halt what is currently happening and prosecute those responsible for previously committed crimes on the oppressed Palestinians.
First of all, the US must stop its military assistance to “Israel,” which is the largest cumulative recipient of such aid since World War II. These funds are used against Palestinian civilians, including women, children, and the elderly. We have recently heard the plights of many US Congress members such as Rashida Tlaib, Ilhan Omar, Waleed Shahid, and Alexandria Ocasio-Cortez. (Al-Jazeera, 2021, Congress Members Slam US support for Israel) The US has largely failed to hold “Israel” accountable for its human rights violations against Palestinians. Their approach overlooks the deeply entrenched nature of Israeli discrimination and repression of Palestinians and minimizes the seriousness of their abuses. Every US administration since 1967, along with all of the international community, has recognized East Jerusalem as among the lands that “Israel” occupied in the Six-Day War. However, this no longer appears to be US policy. Notably, the so-called “Deal of the Century” envisages the annexation of the Jordan Valley and substantial parts of the West Bank and proposed establishing a Palestinian capital in Abu Dis, a Palestinian town outside of the Old City of Jerusalem. (Kattan, 2020)
Second, boycotts can play a decisive role in the Palestinian situation. Throughout history, boycotts proved to be an essential instrument against state oppression, such as the Boston Tea Party, Gandhi’s salt march, and the isolation of apartheid South Africa. Boycotts are a non-violent way to pressure a government to change its ways by drawing attention to oppressive policies through withholding cooperation. The Palestinian Boycott, Divestment, and Sanctions (BDS) movement, for example, has been gaining traction worldwide and particularly on college campuses in the US, where students are advocating for Palestine’s quest for freedom. The movement calls for Palestinian rights under international law. This means, at a minimum, ending the military occupation of Gaza and the West Bank, including East Jerusalem, and ending the system of racial discrimination that exists in “Israel.” Countries should isolate “Israel’s” regime until it recognizes Palestinian rights under international law. Boycotting the oppressive system can have various strategic impacts on its entire regime of oppression in effecting serious change.
Third, we should not stop sharing the CORRECT message. Israeli authorities deploy all their media power in order to alter the facts. In addition, foreign media agencies, that are pro-Israeli, disregard the magnitude of the oppression and untruthfully consider the situation to be a conflict. To be helpful and productive in achieving Palestinian rights, it is imperative to see the situation as it is and not equating the rapist with their rape victim. To frame the people shot by Israeli police on the same page as the people doing the shooting is dishonest and counterproductive in solving the problem. There is the power dynamic that needs to be taken into consideration, the Israelis have the lever of power, and we need to be calling on them to do something; we cannot make the oppressed and oppressors sound equivalent. The violence of the Israeli state started this, and the legitimate self-defense of the Palestinians, which undertake numerous forms of resistance varying from peaceful protest to missiles fired from Gaza, is a response to years of occupation and oppression. The media should not address the situation as two sides of the same coin, lives are being lost during the resistance because Palestinians have been disposed of, harmed, shot, unlawfully arrested, their land taken from them, they have been refugees in their own country and around the world since 1948. This is not a “conflict”; it is called resisting oppression. This is why people need to speak up and act now and realize that supporting the decolonization, freedom, justice and human rights of the Palestinians is not “biased” or “one-sided”; it is human.
Finally, the ICC should seriously consider the Israeli violations of International Criminal Law. Perpetrators of such crimes must not go unpunished, and justice should prevail. Holding those responsible accountable for these crimes deter future violations and sets out an important precedent, such as the South African precedent, to end any type of settler colonialism and apartheid, no matter how long it stays on occupied territories. However, time does not erase the Israeli crimes committed towards the Palestinians, and obscuring current events does not make them disappear. In addition, if the ICC fails to do so, establishing hybrid or ad hoc tribunals with specific mandates to prosecute these crimes may be a more suitable alternative to the status quo; especially in this case, where the ICC’s temporal jurisdiction only dates back to 2014 and the prosecution ignores the crimes committed from 1948 until today. However, the overall political ambiance does not imply that there is a will to do so, especially when the biggest Israeli supporter and one of the permanent members of the UN Security Council plan on continuing its military and political assistance to the apartheid state of “Israel.”
Those who know better, the educated, the scholars, the intellectuals, the humanitarians, are people who should employ their wisdom and not stand still in the face of injustice. Because if they stood still, it is safe to say they are endangering the lives of millions of people reacting to years of oppression. This is not a statement of enthusiasm in a moment of struggle, which is not the first and will not be the last in our region. The plight for justice is a courageous road, filled with sacrifice and tiredness. Nevertheless, freeing Palestine, all of Palestine, from an objective and factual perspective, is possible. This is not an easy quest, nor is it definite, but it is achievable by a full and honest resistance against the Israeli oppressors, stemming from the Palestinian people and not neighboring countries. How?
The Israeli system is a racially discriminatory system based on religion and against every Palestinian. It is the only state in the world that gives its nationality based on a person’s inherited religion. If you ever travel to India and state that you are a Hindu, they will not grant you an Indian passport. However, it is enough for you to be a Jew or your mother is one in order to become an Israeli citizen and live in a house that previously belonged to a displaced family or in a home that was plainly robed by settlers. This system led the Palestinian citizen to be either homeless or a victim, for the sole reason of being born on this land. This oppressive system governs the lives of all Palestinians, inside of the occupied territories and outside of it. Therefore, if this system is shattered, it will mean that Palestine is freed, and the rights of Palestinians for freedom are achieved, wherever they are in the world.
Confronting the settler colonialist authority by the two demographic entities in traditional Palestine between the indigenous Palestinians and the settlers guarantees the collapse of this system. This confrontation can be in the form of civilian movements such as BDS. Resisting this system is not a conflict between religions; it is between those who support the oppressive policies and those who oppose it. Palestinians are younger and are considered very poor comparing to the Israelis, which makes them more dangerous. Israeli authorities tried to resolve the situation by separating Palestinians and putting them in small and isolated epicenters first and then turning them against each other by partitioning them to Palestinians of Gaza, Palestinians of the West Bank, Palestinians of Jerusalem, and Palestinians of the inside. They then separated the West Bank into three parts, naming them A, B, and C. After that, they tried containing the Palestinians through peace and security agreements and economic dependability.
These separation attempts go down the drain each time the confrontation is revived. If the Palestinians stay united, it does no only intimidate the Israeli state; it humiliates the Arab states that have normalized with an entity that occupied a fellow Arab country illegitimately. The Palestinians are not in a state of peace, nor have they been since 1948. Even though there is no political definition of peace other than the absence of war, every country deserves peace and security. The key to attaining this peace is communicating the people’s needs and what is being done to them in order to achieve a tangible value. Israelis cannot claim peace by continuously attacking Palestinian territories and targeting tunnels used by opposing military factions; this only postpones the problem and does not deal with it.
The oppressors must be rid of this role and become a respectable, law-abiding state. If they do not choose that road, the ball is in Palestinian hands. They might choose to give up and live under settler colonialism, deprived of fundamental human rights, and living in an open-air prison. Alternatively, they might choose to continue their armed and civilian resistance in the face of the Israelis in order to gain back their occupied lands, now filled with illegal settlements under international law. However, they might not seek these easy-going goals and stay in resistance mode until they achieve their ever-lasting dream of freeing all of Palestine by joining traditional and occupied Palestine once more. This is an arduous and lengthy option, filled with sacrifice and persistence. However, the Palestinians might prevail based on the doctrine of the poisonous tree’s fruit. The Israelis need to understand that their injustice is as dangerous to their people as much as it is to the Palestinians. Therefore, these oppressive authorities need to recalculate their approach because the international community is shifting, even though gradually, against their violations.
“Freedom for Palestine” is an achievable slogan by uniting the Palestinians and is driven away by compromising human rights, normalizing, dictatorship, and sectarian wars in our region. The immoral authoritarian Israelis that oblige millions of Palestinians to live under tin roofs and drives them to cry over the lives of their loved ones, only because their religion or the color of their eyes is not of the Israeli’s liking, is an intolerable situation. You need not be a victim of such atrocities to understand the heinousness of these actions. Injustice is an absurdity, and there is no real democracy with crime.
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