Last chance for ICC

If ICC chief prosecutor Fatou Bensouda does not move forward with fully investigating Israeli leaders for war crimes, the body will have proven that it lacks all credibility, says the writer. File photo: Michael Kooren

If ICC chief prosecutor Fatou Bensouda does not move forward with fully investigating Israeli leaders for war crimes, the body will have proven that it lacks all credibility, says the writer. File photo: Michael Kooren

Published Jun 26, 2015

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The ICC has been given a last chance to prove that it is capable of dispensing universal justice, says Shannon Ebrahim.

Pretoria - The ICC has been given a last chance to prove that it is capable of dispensing universal justice after Palestinian Foreign Minister Riad Malki handed over documents to the ICC on Thursday of Israeli war crimes in Gaza.

If ICC chief prosecutor Fatou Bensouda does not move forward with fully investigating Israeli leaders for war crimes, the body will have proven that it lacks all credibility.

The ICC is undoubtedly flawed in that it concentrates almost exclusively on prosecuting Africans, but now it has the opportunity to go outside of Africa and prove itself.

“It will be the last straw for the ICC if it fails to investigate Israeli war crimes in the wake of this week’s UN report on last year’s Gaza conflict. It will then be understandable that African countries may choose to withdraw from it,” Professor John Dugard said this week.

As the newest signatory to the Rome Statute in April, the Palestinians have accepted the jurisdiction of the ICC knowing that some of their own may be prosecuted for war crimes.

Israel, on the other hand, acts as if it is above the law, believing it can whitewash its conduct by conducting its own investigation into the Gaza conflict.

The Israeli report released days before the UN report relied exclusively on testimony from the Israeli Defence Force and Israeli government officials.

Israel’s ambassador to South Africa, Arthur Lenk, has lambasted the UN report, calling the UN Human Rights Council “a biased organisation which is obsessed with Israel”.

Predictably, the Israeli report absolved the IDF of wrongdoing and accused Hamas of war crimes.

The Israeli report even tried to argue that Israel went above and beyond what was expected of it under the laws of armed conflict.

Few paid much attention to an Israeli report that failed to interview even a single Palestinian about what happened in the Gaza strip in the 50-day conflict last year. There were 1 462 Palestinian civilians killed compared with six Israeli civilians.

This makes the report released this week by the UN Human Rights Council on the Gaza conflict all the more powerful, given that it was based on extensive investigations, and led by prominent and impartial figures.

“We chose Justice Mary McGowan Davis to head the commission of inquiry given her independence,” former High Commissioner for Human Rights Navi Pillay said.

“I was astonished by the findings of the commission which was headed by an American. Once again a commission of inquiry has pointed to the possibility that war crimes were committed by the Israeli government, which yet again accuses the UN of drafting a biased report.”

The UN report has questioned why Israel had to flatten entire populated areas in Gaza in pursuit of destroying Hamas tunnels.

Pillay said that during her six years as UN High Commissioner for Human Rights, there were three devastating Israeli military operations in Gaza. She described the growing number of reports produced by commissions of inquiry into Israeli crimes which are neither discussed nor acted upon.

There was the Inquiry on Beit Hanoun headed by Archbishop Desmond Tutu in 2006, the commissions of inquiry headed by John Dugard in 2000 and 2006, the commission of inquiry on the Gaza conflict headed by Judge Richard Goldstone in 2009, and the commission of inquiry on last year’s Gaza conflict.

“The 47 members of the UN Human Rights Council set up these Commissions of Inquiry. After each of the last three reports on war crimes in Gaza I called on the General Assembly to discuss the reports and the UNSC to act on them. The US has blocked discussion every time. President Obama refers to America’s special relationship with Israel,” Pillay said. “My response was that you have to hold your friends to account and abide by international law. The US must be reminded of its commitment to end impunity.”

 

The likelihood that the UN Security Council will act on the latest UN report is negligible given that the US has said the UNSC should not discuss the report.

The US prevented a Security Council meeting on the Goldstone report, which had also accused Israel of war crimes.

The only recourse then for the Palestinians is to turn to the ICC, which they did this week. How fast the ICC proceeds with its investigations will be an indication of its seriousness in taking up what it previously deemed “sensitive cases”.

Even if the ICC ultimately prosecutes those responsible for war crimes in Gaza, for it to be truly credible it still needs to be universally ratified.

* Shannon Ebrahim is Independent Media’s foreign editor.

Pretoria News

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