Who Can Be Trusted to Tell?
Top Israeli Intellectuals Urge Human Rights Groups to Investigate War Crimes
Last May, more than 180 Israeli scientists and intellectuals wrote a letter to the International Crime Court (ICC) urging it not to accept the state’s rejection of war crimes investigation in Palestinian territories. Israel told the International Crime Court that it had no jurisdiction to probe Israeli war crimes.
In their plea to Chief Prosecutor, Fatou Bensouda, Israel’s top voices spoke about the state’s refusal to cooperate with the court’s probe into violations in the West Bank and Gaza Strip.
To this day, “war crime” can seem like an ever-evolving, nebulous phrase. In 1942, Hersch Lauterpacht, a leading international lawyer who helped prosecute the Nazis for war crimes at the International Military Tribunal in Nuremburg, Germany, wrote a memo in which he asked, “Is there a definition of war crime?”
Actually, there is.
In article 8 of its Elements of Crimes document, the ICC lists different types of war crime which are covered by the Rome Statute. Some of these include the following:
- Willful killing, torture, mutilation or inhumane treatment
- Destruction and appropriation of property
- Compelling service in hostile forces
- Attacking civilians or civilian objects
On December 20, 2019, in a Summary of Preliminary Findings, ICC Chief Prosecutor Bensouda determined that all the statutory criteria under article 53(1) of the Rome Statue for the opening of an investigation against Israel had been met.
Bensouda announced that there was not only reasonable basis to believe that Israeli war crimes were being committed in the West Bank, East Jerusalem, and the Gaza Strip, but that potential cases would be admissible.
There was no reason to believe the findings would not serve the interests of justice. But, justice for whom, exactly?
These days, justice is as malleable as the ever-changing borders between Israel and the Occupied Territories. It’s definition — like the studded map of Israel and its diaspora — continually changes.
The ICC found that there was reasonable basis to believe that in the context of the 2014 hostilities in Gaza, members of the Israel Defense Forces (IDF) committed war crimes. These violations included willful killing and willfully causing serious injury to body or health. The violations also included intentionally directing an attack against objects or persons using the distinctive emblems of the Geneva conventions.
The ICC also stated there was reasonable basis to believe that members of the Israeli authorities have committed war crimes inter alia, through the transfer of Israeli civilians into the West Bank since the summer of 2014.
Prosecution stated investigation would be required into the IDF’s use of lethal and non-lethal weapons against people participating in demonstrations beginning in March 2018 near the border fence between the Gaza Strip and Israel.
Under article 54(1)(b) of the Statue, the Prosecutor is required to “take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court. The Prosecutor’s duty is to “establish the truth.” What is the truth? When it comes to the situation in Israel and Palestine – one of the most devastating conflicts of our age — war crimes are committed but often omitted from history books.
Last April, Israel decided not to cooperate with the ICC.
Israel rejected the claim that it committed war crimes. In its statement to the ICC in The Hague, Netherlands, senior officials in the Israeli Justice system claimed that the ICC has no jurisdiction to open a probe against it. They claimed the Israeli army investigates every incident where procedures may have been violated and puts those responsible on trial.
In 2019, members of Hamas and Palestinian Armed Groups (PAGs) were both found to have reasonable basis to have had committed war crimes. The list of violations is exhaustive and includes the following:
- Intentionally directing attacks against civilian and civilian objects
- The use of protected persons as shields
- Willfully depriving protected persons of the rights of fair and regular trial
- Willful killing
- Torture or inhumane treatment
- Outrages upon personal dignity
Yet, this isn’t a one-sided issue. In the case of Israel war crimes specifically, it’s important to note that this isn’t the only probe.
Extreme Acts of Discrimination Against the Palestinian People
In just this past December, almost 125 countries backed an open-ended war investigation by the United Nations Human Rights Council (UNHRC) — a 47-member council — against Israel. The probe came from the aftermath of the 11-day besiege into the Gaza Strip in May. At least 260 Palestinians — 66 of them children — were killed in that attack.
Both Israel and the United States voted against the approval of a budget into the UNHRC investigation and even tried to defund it.
The authors of last spring’s letter to the ICC– urging prosecution not to allow Israel to probe its own war crimes and instead enlist the help of human rights groups — cited extreme acts of discrimination against the Palestinian people. The letter described “severe restrictions upon freedom of movement, appropriation of Palestinian lands for the purpose of Israeli settlement…curfews and blockades, and unwarranted arrests.”
Israel’s top scientists and intellectuals blamed military courts for their “abject failure…to provide even a semblance of justice.” Should the state of Israel — or any country, for that matter — be permitted to probe its own alleged war crimes?
The signatories of the letter to the Prosecutor include 10 recipients of the Israel Peace Prize (the state’s highest cultural honor), 35 renowned professors and a remaining body of respected authors, published intellectuals, academic researchers, and even esteemed reserve army officers. According to these signatories, the answer is a fully resounding no.
The letter to the ICC asserts that “the State of Israel — including its investigative and legal institutions — has no intention to seriously investigate complaints of war crimes.” No intention. While most will agree that action follows intention, if the State of Israel has no intention of investigating the war crimes against it, then will anything ever change in the Palestinian/Israeli conflict?
The signatories of the letter to the ICC note that there are presently hundreds of documented violations of international law committed by Israel in the Occupied Territories. Almost none of them have been investigated.
Repairing the World
Following a 2014 act of terror — Operation Protective Edge, in Gaza — which caused the death of 2,131 Palestinians (1,473 civilians and 501 of them children), the now-deceased Archbishop Emeritus Desmond Tutu (a renowned South African Anglican Bishop) published a tragic letter in the newspaper, Haaretz titled “My Plea to the Israeli People.”
Comparing the situation in Palestine and Israel to apartheid in South Africa, Tutu claimed “the pursuit of freedom for the people of Palestine from humiliation and persecution by the policies of Israel is a righteous cause.”
In the Jewish culture, there is hardly anything more righteous and biblically pertinent than the idea of Tikkun Olam — a Hebrew phrase that roughly translates to “repairing the world.”
Perhaps in the Holy Land, repairing the world starts with one nation’s atonement — and Tikkun Olam means Israel taking accountability for its own violations of war.