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Is the ICC decision to investigate Israel for war crimes a game changer?

In a historic departure after receiving more than 9,000 complaints about alleged crimes in more than 139 countries, the ICC has shifted its singular gaze from Africa to investigate Israel for war crimes committed against the Palestinians in the West Bank, Gaza and East Jerusalem regions.

Thus far, all the countries where the ICC has opened investigations have been on the African continent, opening the accusation of racism against the ICC.

Western countries have invaded, occupied, bombed, starved, sanctioned, imprisoned, tortured and killed millions of people in the Middle East, Asia, Africa and Latin America, and not a single leader held accountable.

“That,” said the former African Union (AU) chairman Jean Ping  “is a problem.”

This decision by the International Criminal Court (ICC) to investigate Israel for committing war crimes has elicited the expected accusation of “anti-semitism” by it’s prime minister Benjamin Netanyahu.

ICC chief prosecutor Fatou Bensouda determined that,  at the end of her own five-year probe into the “situation in Palestine,” and under the terms of the Rome Statute which established the ICC, that there was a “reasonable basis to believe that war crimes were committed” in the West Bank, Gaza Strip and East Jerusalem regions.

“There is a reasonable basis to believe that war crimes were committed in the context of the 2014 hostilities in Gaza” by the Israeli forces, for launching disproportionate attacks and “wilful killing and wilfully causing serious injury to body or health… and intentionally directing an attack against objects or persons using the distinctive emblems of the Geneva Conventions,” she had stated in 2019.

Bensouda can now launch a criminal investigation into the 2014 Israeli invasion and devastation of Gaza, where about 2200 were killed. At least, according to the UN, 1473 of the dead were Palestinian civilians, including 501 children and 257 women. Six Israeli civilians were reportedly killed.

Israel bombed18000 homes, schools, hospitals, ambulances, poultry and agricultural industries, civilian infrastructure, water treatment plants and Gaza’s only power plant.

The reckless and disproportionate use of force is a well known Israeli military strategy known as the  Dahiya Doctrine, which calls for the systematic use of massive and disproportionate force, including against civilian targets, in order to defeat and deter enemies.

The Rome statute defined four core crimes: genocide; crimes against humanity; war crimes; and crimes of aggression.

Israel claims that it is a liberal democracy, a country governed by law and subject to the supremacy of the law and equality before the law. Furthermore, it has an independent judicial and prosecutorial apparatus and an independent Supreme Court. It therefore claims that the ICC has no basis to intervene with the sovereignty of Israel.

It spuriously professes that all these qualities guarantee that Israel is capable of honestly investigating itself, indicting transgressors, and punishing IDF and police personnel who break the law. This Israel has been deceptively doing for decades, averting an ICC to investigation.

Ironically, it is PM Netanyahu himself, facing trial on three counts of corruption, fraud and breach of trust, that has been waging war on Israel’s judiciary and legal system for many years. He has repeatedly attacked the state prosecution and courts, harshly criticized the legal system for framing him and fabricating allegations and indictments.

He has questioned the integrity of the prosecution team, accused the entire legal system and the attorney general of corruption and political motives to bring him down, and has constantly undermined the legitimacy of the Supreme Court.

The ICC is meant to serve as a court of last resort when countries’ own judicial systems are unable or unwilling to investigate and prosecute war crimes.

Israeli Attorney-General Avichai Mandelblit rejected the ICC ruling, alleging that Palestine was not a sovereign state and as such there was no territory that belonged to such a state.

However, the ICC judges in the majority decided that war crimes suits could now be levelled at Prime Minister Benjamin Netanyahu, defense ministers and any other high-level officials involved in such activity since June 13, 2014, including soldiers and military commanders.

The Israeli fear is based on the ICCʼs founding charter (the 1998 Rome Statute), when not only Israelʼs crimes in Gaza but also the question of Israeli settlements in the Palestinian territories would be raised and Zionist leaders would be held accountable. The Rome Statute describes as a war crime “the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies.”

This ruling could also be setting a precedent for Western countries such as the USA, United Kingdom and France, who have pursued genocidal policies with impunity resulting in the deaths of millions of people in Iraq, Afghanistan, Libya, Mali and Syria.  They have imposed sanctions, unleashed wars on a pack of lies, and tortured thousands in Iraqʼs notorious Abu Ghraib prison, Bagram and Guantanamo Bay.

Former US President George Bush, his vice president Dick Cheney, who has proudly admitted on television that he authorized torture, former defense secretary Donald Rumsfeld, Obama, Macron and Blair, are amongst those guilty of war crimes and crimes against humanity.

Others, such as India’s Narendra Modi for his rape of Kashmir; Xi Jinping brutality against the Uighurs, and the Saudi and UAE massacre of the Yemenis, need to be investigated. Unless this is done the credibility of the ICC is at stake.

There is a great deal of justifiable scepticism by many whether the ICC will deliver justice to the Palestinians and other oppressed people. Funded primarily by the European Union, the ICC, like the UN, IMF and the World Bank has been regarded as a Western instrument to force the weaker nations to follow  the diktats of the more powerful.

Is the ICC is nothing more than an instrument in the hands of the imperialist powers?

Soon after the 2014 Israeli attack on Gaza, The Media Review Network (MRN) and the Palestinian Solidarity Alliance (PSA) requested the SA National Prosecuting Authority (NPA) to  investigate Israel for committing war crimes. The Muslim Lawyers Association (MLA) settled the legal papers and made a direct representation to  ICC’s Luis Moreno Ocampo at The Hague, with no satisfactory outcome.

As Fatou Bensouda’s term expires this June, is it realistic to hope that her successor will have the courage to indict any war criminal from Israel, any Western nation or their allies?

Millions of victims of war crimes, from Palestine to Iraq to Mali, have a hope, however feeble, that the ICC will bring some justice to them in the near future.

Dr Firoz Osman is the co-author of Why Israel? The Anatomy of Zionist Apartheid-A SA Perspective, and an executive member of the Media Review Network, an advocacy group based in Gauteng.

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