'An Ear for an Ear, not an Eye for an Eye': Critiquing the ICC for the Isreali-Palestinian Conflict

• Author: Jeremie Maurice Bracka
• Pages: 98-122

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‘AN EAR FOR AN EAR, NOT AN EYE FOR AN EYE’:

CRITIQUING THE ICC FOR THE ISRAELI-PALESTINIAN CONFLICT

Jeremie Maurice Bracka*

A INTRODUCTION

The Palestinian Authority’s (PA) recent decision in April 2015, to join the International Criminal

Court (ICC) has instigated a fiery debate, exposing tensions between international criminal

justice (ICJ) and the Middle East peace process. This article critiques the potential role of the

ICC in the Israeli-Palestinian conflict, whether its intervention is politically and legally plausible,

and whether it is desirable for the Court to intervene. It will identify some of the obstacles to

jurisdiction over Israel’s alleged crimes in Gaza, and the Israeli settlements, concluding that they

are not unsubstantial. In short, opening an investigation into the complex situation of Palestine is

far from assured. Moreover, it will be contended, that beyond polarised rhetoric or technical

legal debate, any meaningful resolution of the conflict will need to include questions of historical

responsibility, and account for the existential aspects of both nations’ pasts. Accordingly, it will

be submitted that an unofficial bi-national truth commission, based on a model of ‘restorative

justice’, may be far better suited to Israelis and Palestinians, than the blunter tool of international

‘retributive justice’.

B APPLICABILITY OF ICJ TO THE ISRAELI-PALESTINIAN CONFLICT

I International Criminal Liability

The relevance of ICJ to the region is best explored through the debate over the wisdom and

implications of an ICC intervention. This is because Israelis and Palestinians appear unlikely to

agree to an ad-hoc or hybrid tribunal. It is also because the very raison d’être of the ICC was to

become a permanent home to adjudicate serious international crimes. No doubt, an international

prosecutor could build a solid case against either Israelis or Palestinians, regarding any number

of potential breaches of international criminal and humanitarian law. There is no shortage of

scholarship and human rights reports discussing alleged breaches of international criminal law

(ICL) and international humanitarian law (IHL) on both sides.

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On the Israeli front, civilian settlements into the Palestinian territories are commonly cited as war

crimes.1 These charges, in turn, led to attempts by other states to exercise universal jurisdiction

over Israeli political and military leaders.2 Some have even claimed Israel is liable for genocide

against the Palestinian people.3 It is equally not difficult to find reports that Palestinians, (namely

Hamas) have also committed serious crimes against Israelis such as using human shields.4 For

example, deliberate rocket fire on Israeli civilians could equally warrant prosecutions.5 Some

commentators have noted that Hamas attacks on civilians might in fact be easier to establish than

alleged Israeli war crimes.6 In sum, there are credible accounts of deliberate and/or

indiscriminate attacks on civilians by both Israelis and Palestinians. Such practices, and other

alleged breaches could expose officials and militants on both sides to prosecutions for gross

human rights violations.

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* LLB (Hons) (Monash), LLM (NYU), PhD (Monash). The author wishes to dedicate the piece to his inspiring

Mamma Fela who taught him to think with his heart.

1 Israeli settlements in the West Bank are widely considered to contravene Art 49(6) of Geneva Convention (IV)

Relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287

(GC IV). Under Art 8 (2) (b) (viii) of the ICC Statute, such acts would constitute war crimes. See David Forsythe,

The Humanitarians: the International Committee of the Red Cross (CUP 2005) 73.

2 For example see: UN General Assembly Meeting Coverage, Experts Suggest Invoking Universal Jurisdiction

among Legal Options to Address Israeli Settlements, as International Meeting on Palestine Question Continues,

GA/PAL/1346 (8 September 2015).

3 For example, the late human rights lawyer and Center for Constitutional Rights Board President Michael Ratner

charged Israel with committing ‘incremental genocide’ against the Palestinian people: Michael Ratner, ‘UN's

Investigation of Israel Should Go Beyond War Crimes to Genocide’ (The Real News, 27 July 2013)

<http://therealnews.com/t2/index.php?option=com_content&task=view&id=31&Itemid=7 4&jumival=12155>

accessed 10 March 2017.

4 See for example Human Rights Watch Report, ‘Rockets from Gaza: Harm to Civilians from Palestinian Armed

Groups' <www.hrw.org/report/2009/08/06/rockets-gaza/harm-civilians-palestinian-armed-groups-rocket-attacks>

accessed 10 March 2017. The Report stated that, ‘Palestinian armed groups unnecessarily placed Palestinian

civilians at risk from retaliatory attacks by firing rockets from densely populated areas. Additionally, reports by

news media and a nongovernmental organization indicate that in some cases, Palestinian armed groups intentionally

hid behind civilians to unlawfully use them as shields to deter Israeli counter-attacks.’

5According to several sources deliberate and systematic targeting of Israeli civilians and civilian objects by

Palestinian armed groups' rocket attacks violates IHL and amounts to a war crime. The Israeli Intelligence and

Terrorism Information Center (ITIC) notes that such attacks contravene the Principle of Distinction, as encapsulated

by Art 48 of Additional Protocol I to the Geneva Conventions of 1949. See also Irwin Cotler, ‘The UN-Hamas and

Alice in Wonderland’ Jerusalem Post (Jerusalem, 26 July 2014) <http://www.jpost.com/Opinion/Op-Ed-

Contributors/The-UN-Hamas-and-Alice-in-Wonderland-368970> and Daniel Benoliel and Ronen Perry, 'Israel,

Palestine and the ICC' (2010) 32(1) Michigan Journal of International Law 73, 119-120.

6 See Linda M Keller, ‘The International Criminal Court and Palestine: Part II’ (JURIST-Forum, 5 February, 2013)

<http://www.jurist.org/forum/2013/02/linda-keller-icc-palestine-part2.php> accessed 10 March 2017.