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Challenging Israeli impunity in the ICC

As the Israeli judiciary continues to side with the state and its security services, advocates and human rights lawyers must reevaluate the strategy of litigating Palestinian grievances in the occupier’s courts.

By Sagiv Galai

Palestinians carry an injured youth who was shot by an Israeli sniper during clashes with the Israeli army in the occupied West Bank city of Hebron, November 4, 2015. (Anne Paq/Activestills.org)

Palestinians carry an injured youth who was shot by an Israeli sniper during clashes with the Israeli army in the occupied West Bank city of Hebron, November 4, 2015. (Anne Paq/Activestills.org)

Palestinian human rights organizations submitted a classified communication to the International Criminal Court (ICC) prosecutor last month. The information contained will most likely involve the documented targeting of non-military facilities during the 2014 Gaza war. At least 28 schools were damaged or destroyed during the 2014 offensive, according to Human Rights Watch hospitals, medical staff, sewage and electricity plans, and other civil infrastructure were also allegedly targeted.

Such targeting of medical and civilian infrastructure is not limited to Gaza, however. Serious allegations have also been raised about the Israeli army’s conduct in the West Bank in recent months.

Since the start of October 2015, Israeli security forces committed 228 “violations against [Palestinian] medical staff,” according to Palestinian human rights group Al-Haq, including 56 cases in which “ambulances were attacked” and 116 cases of assaults against medical staff. Numbers for November from the Palestinian Ministry of Health have not yet been released.

More than 105 Palestinians have been killed by Israelis and Israeli forces since October 1, dozens of whom were allegedly involved in attacks against Israelis. Thousands of Palestinians have been wounded by live or rubber-coated bullets in the same period, mostly during demonstrations and clashes with Israeli troops. Twenty-one Israelis have been killed by Palestinians.

Israeli border policemen are seen during clashes with Palestinian youths in the West Bank city of Bethlehem, November 13, 2015. (Mustafa Bader/Activestills.org)

Israeli border policemen are seen during clashes with Palestinian youths in the West Bank city of Bethlehem, November 13, 2015. (Mustafa Bader/Activestills.org)

Israeli forces also raided at least two Palestinian medical facilities in recent months. Video from a November raid on al-Ahli Hebron hospital shows approximately 20 men disguised as Palestinians entering a hospital ward, drawing their weapons and snatching a wanted man. The undercover special forces police officers also shot and killed the man’s cousin during the raid. According to Al-Haq, attacks on hospitals constitute a violation of international humanitarian law.

“This is not the first time we see that as the conflict intensify, the protection given to medical teams and facilities gets eroded,” Physicians for Human Rights—Israel said in a statement. “Such violations do not appear out of nowhere—they are part of the routine that comes about with the continued military rule of the occupied territories and its systematic violation of the Palestinians’ rights.”

Israeli, Palestinian and international human rights organizations have long alleged that the Israeli military acts with impunity when it comes to violence against Palestinians in the occupied territories.

Israeli human rights organization Yesh Din published data earlier this month highlighting the extent of that impunity. Of 229 investigations opened in 2014 into “suspected criminal offenses committed by soldiers against Palestinians in the West Bank and the Gaza Strip,” only eight (3.5 percent) cases resulted in indictments, a 1 percent decrease compared to 2013.

Palestinian protesters flee tear gas at a non-violent protest in which Palestinian Minster Ziad Abu Eid died. Activists set out to plant olive trees on lands usurped by Israeli settlements, December 10, 2014. (Photo by Oren Ziv/Activestills.org)

Palestinian protesters flee tear gas at a non-violent protest in which Palestinian Minster Ziad Abu Eid died after being shoved by Israeli troops, December 10, 2014. (Photo by Oren Ziv/Activestills.org)

As the Israeli judiciary continues to side with the army and security services, advocates and human rights lawyers must reevaluate the strategy of litigating Palestinian grievances in the occupier’s courts. Decades of failing to achieve justice and corrective action has led many human rights lawyers to place their hopes in the ICC as a possible forum for investigating and prosecuting allegations and grievances related to the occupation.

The role of the ICC is imperative in the case of Israel and its occupation of Palestinian lands and lives. No other party has demonstrated a willingness to effectively challenge Israel’s rationalization of international law violations under the auspices of the most omnipotent retort—national security and the fight against terrorism.

In the next few years this question may develop as the significance of the ICC Preliminary Investigation matures. What will be the role of war crimes allegations or even indictments against Israeli officials in any future peace negotiation? Will the arc of justice, which the ICC may hope to bend towards Palestine, be used to leverage the removal of Israel’s separation barrier, the removal West Bank settlements, the blockade on Gaza and military rule over millions of Palestinians?

In the case of this “conflict,” where bargaining chips evaporate and re-appear, will aspirations for transitional justice and universal jurisdiction serve Palestinian negotiators, or remain legally restricted to serve as redress for war crimes and human rights violations? The discourse of human rights seems capable winning the moral argument, but Israel’s military power is showing no sign of loosening its grip of the reality on the ground.

The the role of the law in Israel-Palestine must no longer be restricted by national boundaries. It seems inevitable that ICC jurisdiction will ultimately prove to be a game changer, either by alienating Israel further, or by opening up a productive and meaningful channel for fighting the battle for justice in Palestine in judicial forums.

Sagiv Galai is a writer, activist and independent researcher. His work concerns the intersections between military and intelligence apparatuses and human rights. Sagiv was born in Israel and is currently based out of New York. 

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