Despite the great potential of multilateral bodies to ensure a better world by holding nation-states accountable to agreed protocols and programs, their enforcement biases have eroded their credibility. Developing countries, particularly those in Africa, have long lost faith in the International Criminal Court [ICC] due to its selective choice of investigations. Investigating war crimes in occupied Palestinian territories is an important step in demonstrating the ICC's commitment to an objective application of its mandate, placing it on the journey to having its credibility restored.
Operationalised in 2002 in accordance with the 1998 Rome Statute, the ICC was “established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression.”
While its focus is specific to individuals, ad hoc tribunals looking at the impact of the decisions and/ or conduct of such individual or a set of individuals within a member state on a general community can be established, examples being Yugoslavia and Rwanda. Investigating war crimes in occupied Palestinian territories accordingly falls within the ICC jurisdiction.
Proceeding with this process is an imperative. The value of the ICC has come under intense scrutiny over the past five years, with many countries, including South Africa arguing that it is ineffective and that it is targeting Africa unfairly and disproportionately. If the ICC is to be taken seriously once again, it must demonstrate that it is beyond the influence of the world’s super powers and that it is willing to exercise its responsibilities without fear or favor.
Not only is this investigation crucial for rectifying the ICC's image, its necessity also resonates strongly with former anti-apartheid activists. While publicly condemning apartheid, Israel covertly advanced an array of mutually beneficial commercial and military activities, thereby supporting apartheid South Africa, through sanction busting, security partnerships and weapons trading. In 1985, a period marked by severe uprisings in South Africa equivalent to and possibly exceeding the 1976 uprising, for example, Israel imported about $100 million worth of goods from South Africa and exported about $44 million.
Items of trade included the Saar-class missile boats, the Gabriel sea-to-sea missile and avionics electronic countermeasures for apartheid South Africa's Cheetah fighter-bomber. Israeli and South African intelligence and military officers met regularly to share information and tactics and for joint training including in torture.
This is understandable given the strong commonalities between their practices, which continue to manifest in occupied Palestinian territories today. Besides the ongoing encroachment on land through settlement expansion, the movements of Palestinians are callously curtailed and repression and militarisation constitute their every day living. I say this not based on propaganda but informed by my lived experiences during visits to Ramallah and Hebron, amongst others.
According to the UN Office for the Coordination of Humanitarian Affairs, 252 Palestinians were killed and 25,522 were injured in the West Bank and Gaza Strip in 2019. At least 5000 Palestinians are currently in Israeli jails. As at October 2019, there were 185 minors held in Israeli prisons as security detainees and prisoners, including one under the age of 14. In addition, 3 Palestinian minors were held in administrative detention. Another 5 Palestinian minors were held in Israel Prison and Service facilities for being in Israel illegally.
While the Israeli leadership was never made to account for their role in supporting apartheid South Africa and for the destruction in the broader South African Development Community, they will hopefully be made to account for their treatment of Palestinians. Extensive mobilisation was required to get global appreciation of apartheid‘s listing as a crime against humanity.
While the UN has already repeatedly condemned the treatment of Palestinians, there are many, including South Africans, who unashamedly and cold heartedly justify, defend and exult these atrocities. The investigation will assist to expose the truth about Israeli brutality and aggression.
Already there are intense efforts by the Israeli government and countries such Australia and Germany to block the investigation. It is however important that the ICC asserts its authority without prejudice. As Judge Kirsch said at the 60th Anniversary of the Nuremberg Trials (2006), “Ensuring accountability is important in itself, but it is also important because allowing impunity for widespread or systematic atrocities can have serious consequences for international peace.”
Regardless of the outcome, the decision by International Criminal Court’s Chief Prosecutor, Fatou Bensouda, to conduct a full investigation into war crimes in Occupied Palestinian Territories, thereby challenging the powerful globally-networked Israeli leadership, sends a strong signal that no one is above the law.
We trust that the ICC will have sufficient integrity to continue the investigation amidst strong lobbying to stop it. In so doing, faith in the ability of the ICC to be an organ of value might begin to resurface. And who knows, one day it might even take its mandate seriously enough to challenge the world’s quintessential bully, the United States of America.
* Reneva Fourie is a public policy analyst specialising in governance, development and security.
** The views expressed here are not necessarily those of Independent Media.