The role of the IC (UN-ICC) in promoting unintendedly, the apartheid against Palestinians
– “Deal of the Century” –
Homam Daoud*
Recently a statement was announced by ICC prosecutor Fatou Bensouda on December 20, 2019 concerning the war crimes committed in Palestine, and I quote “I am satisfied that there is a reasonable basis to proceed with an investigation into the situation in Palestine, pursuant to article 53(1) of the Statute.”. It’s for sure a progress in the case of Palestine, a progress that led to an angry response from the Israeli government and its ally U.S. governments.
Actually, this reaction made me see it as a criteria for the international justice.
It’s important to mention that in 2012 the UN granted Palestine a ‘non-member observer state statue, while the international community remained silent toward the brutality of the apartheid regime in Israel that surpassed the old South African regime prior to 1994.
However, the U.N. security council adopted the “Resolution 2334”, just three years ago. This resolution asserted that settlements in the occupied Palestinian territories are illegal and that no unilateral changes to the pre-1967 borders would be recognized, and it also condemned all acts of violence against civilians, including terrorism, provocation and destruction.
So what? Any hope for justice for Palestinians soon? Trump’s deal of the century expressed the opposite. No state for Palestinians by force and instead a system of Bantustan will be imposed. Bantustan (also known as Bantu homeland, black homeland, black state or simply homeland) was a territory that the (White) National Party administration of South Africa set aside for black inhabitants of South Africa and South West Africa (now Namibia), as part of its policy of apartheid.
The statement of the ICC prosecutor was a bold decision and a necessary one toward an international justice, although it is too late, but better late than never.
So now one expects that the investigations of the ICC will be conducted soon but NO!!
In the statement, Fatou clarified that before the investigation, there are contested legal and factual issues to be dealt with, which is the ‘Territory’ issue, or on other word, what is Palestine as for ICC?
The unrecognition of Palestine as a sovereign state will hamper the investigation thereby delaying justice to a further notice given that it is one of three possible ways to conduct the investigation. However, this means that the court has no effectiveness or role in an occupied country, in other words in all matters related to art. 7 and art. 8 related to war crimes and crimes against humanity, so that we do not speak about the outstanding crime of aggression in the court. This would be a shattering precedent for the ICC’s credibility in the event that Palestine or violations occurring on its territory are placed outside its jurisdiction. At a time when the United States is fighting a war to liquidate any role of the ICC at the global level. Another way is by a referral from the U.N. Security Council where the US will unsurprisingly veto any case like this. The last possible way is in the light of the art. 19 (3) mentioned by the prosecutor speech but it put the responsibility of achieving such justice will be on the shoulders of the victims as saying the international community (IC) is not responsible.
The indifference of IC will worsen the situation as long as Israel benefits from the impunity it has and the Trump deal is a proof. The only way out for the victims of the apartheid and colonialism is recognizing Palestine as a state.
What are we waiting for? And what this recognition might offer?
Similar to the International boycott of South Africa in the 90s, the recognition will help the Palestinians to move forward in its relation with ICC. In other words, Palestine will gain a tool to stop the annexation and the exploiting of resources from the Palestinian territories. It will also help the Palestinians to lobby the countries at United Nations General Assembly (UNGA) to get out of the humiliating negativity that some of them are practicing, whether under American-Israeli pressure, or a desire to present good behavior papers to the strongest, and to have a voice on this issue.
It will indeed refrain the impunity of Israel and make it abide by the International Law.
Finally, the EU will be efficient in holding Israel accountable once Palestine is recognized as a state. The EU and its members will not stay just a statement machine. This recognition will push the European countries to impose sanctions on Israel given that the EU and its members is one of the biggest economies in the world.
Boycott, Divestment and Sanctions (BDS), this is a name of global, peaceful movement led by Palestinian civil society that seeks to put pressure on Israel to honour its obligations under international humanitarian and human rights law as demanded by numerous UN resolutions. BDS now is facing a counter movement supported by laws and taken executive actions adopted by France, the United Kingdom, Canada and certain state legislatures in the United States, in order to suppress, outlaw and in some instances, criminalize the advocacy of BDS, beside criminalize a lawful exercise of freedom of expression.
When are we going to indicate this moral outrage?
Last but not least, the non-recognition of Palestine is hampering the Universal Jurisdiction from being effective in prosecuting Israeli individuals for serious crimes against international law – such as crimes against humanity, war crimes, genocide, and torture – crimes that harm the International Community (IC), and keep Israel non-accountable for its crimes against the Palestinians and IC, and finally made D. Trump and B .Netanyahu impose on all Palestinians such a deal.
Homam Daoud – Human Rights Defender, & Political Activist. Researcher at the Scandinavian Institute for Human Rights (SIHR)
