The court’s rejection of a lawsuit challenging the shooting of protesters in Gaza is a reminder that the Israeli legal system simply isn’t set up to investigate the policy makers and policies that result in alleged war crimes.
Israel’s High Court of Justice may have just inadvertently increased the possibility that senior Israeli officials might themselves show up on the docket of the International Criminal Court one day.
Last Thursday night, the court rejected a legal challenge that sought to strike down the Israeli army’s policy of shooting unarmed protesters in the Gaza Strip. Six Israeli and Palestinian human rights groups had filed two parallel emergency petitions weeks earlier, before the worst of the violence had occurred, hoping to change the rules of engagement in time to prevent more killing.
But their motions to hold emergency hearings were not granted and by the time the justices reached a decision last week, the Israeli army had killed over 110 Palestinians in Gaza — more than half of them on a single day. Israeli snipers shot and wounded more than 3,600 others during the seven weeks of protests that culminated on May 14th.
Weeks earlier, the army had already announced that it was investigating a few of the killings, but it was the policy — the rules of engagement — that authorized Israeli sniper teams to shoot some 3,600 Palestinians that the rights groups had asked the court to review. The court said no.
When most people think of the ICC investigating alleged Israeli war crimes they think of the destruction and carnage the IDF wrought during the 2014 Gaza war. In all likelihood, that is not a realistic prospect. An investigation — and perhaps, one day, an indictment — is far more likely to result from the mass killing and shooting of protesters in recent weeks, or even settlement construction in the West Bank.
Short of simply not committing war crimes, the easiest way for a state to protect its officials and generals from ending up in The Hague is to set up effective, or even seemingly effective mechanisms for investigating itself. At the core of the ICC’s founding treaty, and the at foundation of its jurisdiction, lies the principle of complementarity.
In short, complementarity means that the ICC will only investigate or prosecute alleged war crimes if the national legal systems — where the crime...Read More