Since the first Israeli bombs destroyed Palestinian homes as part of the military’s recent attack on Gaza, accusations of Israeli war crimes have been aired by numerous human rights groups.
Human Rights Watch, for instance, has documented Palestinian civilians’ testimony of being fired on and killed while fleeing Khuza’a, a village near the line separating Israel from Gaza. The United Nations Human Rights Council has established an inquiry to look into claims of war crimes on both sides.
But the burning question is whether the Israeli soldiers or commanders responsible for the alleged crimes will be held accountable. It’s not likely to come from within the Israeli court system. Requests for compensation from Israeli civil courts are usually unsuccessful. Israel’s military does investigate specific allegations of war crimes, but according to the Israeli human rights group B’Tselem, “there is currently no official body in Israel capable of conducting independent investigations of suspected violations of international humanitarian law.” After Israel’s 2009 attack on Gaza, only four soldiers were convicted of war crimes, with the harshest punishment–seven months in jail–served because of credit card theft.
While the prospects for accountability are slim, there are three separate paths Palestinians and their supporters can walk on to pursue justice. Here’s an explanation of them.
1. International Criminal Court
This is the nuclear option for Palestinians–and one the Palestinian Authority (PA) has so far resisted since the 2012 United Nations vote granting Palestine observer state status in the international body. That vote gave the observer state the power to give the ICC jurisdiction over crimes committed on Palestinian territory. (Before the UN vote, the ICC announced they had no jurisdiction over crimes on Palestinian territory because it couldn’t decide whether Palestine was a state.) The Palestinians haven’t exercised that power yet. The United States and Israel are strongly opposed to a PA bid to accede to the Rome statute, the treaty that established the ICC. The court was founded in 2002 to prosecute individuals responsible for serious crimes violating international law.
The Palestinians have slowly begun to take steps towards signing the treaty. As Mondoweiss’ Allison Deger noted, Palestinian officials have drafted letters to accede to the Rome statute. Another option is that Palestinian officials could also file a declaration seeking the ICC’s jurisdiction, a move that previously failed because of their non-state status. Hamas is supportive of Palestinians joining the court, even though their rocket attacks targeting Israelis would likely be investigated.
If the Palestinians decide to sign the Rome statute, Abbas can call for an investigation into crimes in Gaza. That would trigger a backlash from the U.S. and Israel, and could lead to aid cuts to the Palestinian Authority.
The other option would be for the UN Security Council to refer a case to the ICC, as the UN Goldstone report suggested. But since the U.S. has veto power, that option is dead in the water.
2. Universal jurisdiction
This Nuremberg trials-era principle holds that any state around the world has jurisdiction over the most serious crimes under international law. The crimes included in this rubric are violations such as war crimes, genocide, torture and crimes against humanity. Many states have laws providing for universal jurisdiction. Figures like Chilean dictator Augusto Pinochet have been indicted and detained under the principle. But political considerations and legal issues have, in many cases, prevented the exercise of universal jurisdiction.
Any state that has laws authorizing universal jurisdiction could conceivably bring a case against Israeli soldiers or officials responsible for prosecuting the latest Gaza assault. Yet the record on accountability for alleged war crimes is dismal.
The most famous case was opened in Spain against Avi Dichter, a former director of the Shin Bet who ordered an Israeli airstrike on the home of Hamas member Saleh Shehadeh in Gaza. The attack killed Shehadeh, his wife and daughter and a number of other civilians living nearby. The Palestinian Center for Human Rights filed charges of crimes against humanity against Dichter in Spain, and a judge decided to open a case in 2009. But later that year, the case was closed.
The Center for Constitutional Rights had filed a case against Dichter in the U.S. for the same attack, but a court of appeals declined to continue hearing the case, deferring to the wishes of the executive branch.
And for many years, Israeli officials feared traveling to the United Kingdom since under British law, citizens can file universal jurisdiction cases against foreigners visiting. In 2005, former Israeli military official Doron Almog fled from Britain after flying there. British security officials were reportedly waiting for him at the airport to arrest him, but Almog never crossed British border control.
After intensive lobbying by Israeli officials, Britain changed their universal jurisdiction laws in 2011, though Haaretz reported the next year that Israeli officials still feared traveling to the UK for fear of being ensnared in the legal system.
3. The International Court of Justice
The ICJ is the official judicial body of the United Nations. The ability to refer cases to the ICJ, though, is limited. The main path is for both states to agree to submit a case to the court. A decision in these types of cases would be binding. In the case of the Palestinians, this is highly unlikely. Israel and the Palestinians are not about to agree to send disputes to an international court.
Another path is to have the United Nations General Assembly, at the request of the Palestinians, refer a case to the court through a vote. This would be a non-binding, advisory decision, much like the 2004 ICJ verdict that Israel’s West Bank separation barrier and settlements were illegal under international law.