When the International Criminal Court was established in The Hague in 2002, Israel, along with the US and China, was not among those nations celebrating its birth. That is because they are not full signatories to the Rome Statute, the document that establishes the court and its jurisdiction. And, although the UN Security Council can refer matters to the ICC, the US would always veto any such attempt to bring Israel before the Court.
It is arguable that the conduct of Prime Minister Ehud Olmert, his cabinet and the military in the current Gaza conflict would indeed provide the ICC with the capacity to investigate whether or not war crimes are being committed.
‘War crimes’ is exhaustively defined by Article 8 of the Rome Statute. For the purposes of the Israel-Hamas conflict there are a number of examples listed in Article 8 which appear to be directly relevant. They include:
Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
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Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
Given what we know of the conflict so far, it is certainly arguable that some or all of these examples of war crimes have been committed by the Israeli government and its military apparatus.
Then there is the question of the conduct of Mr Olmert’s government since Hamas took control of the Gaza Strip in June 2007. Mr. Olmert’s government initiated a policy of cutting the Gaza Strip off from the world. Power, electricity, food, medicines and other essentials of life have been in short supply, according to aid agencies such as the Red Cross and Oxfam, since that time. The suffering caused to the 1.5 million people living on the Gaza Strip because of this policy has been well documented.
Such conduct arguably constitutes a ‘crime against humanity’ as defined by Article 7 of the Rome Statute. Article 7 says that “a widespread or systematic attack directed against any civilian population’, which involves “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender” grounds can constitute a crime against humanity.
Israel, despite its rhetorical commitment to the universality of human rights, has a poor recent track record when it comes to ensuring its actions are compatible with international human rights standards.
On 9 July 2004, the International Court of Justice issued an advisory opinion declaring that the wall built by Israel to divide it from the Palestinian Territories is in breach of international human rights and humanitarian law, as well as the right to self-determination. It stipulated that Israel was under an obligation to cease construction of the wall, dismantle the structure and make reparation for all damage caused by that project. Israel has refused to comply with this request.
Israel has every right to defend itself against Hamas’ rockets, but it has not right to commit crimes against humanity and war crimes in doing so. On the face of it, this is what is happening today, and has been for the past 18 months. What a pity that the innocent men, women and children living on the Gaza Strip cannot seek the protection of the ICC because Israel does not want an independent watchdog looking over its shoulder.