Unwilling or Unable? The International Community’s Failure to Hold Israel Accountable for the Ongoing Apartheid in Occupied Palestine

[Ahmed Abofoul is a Research Assistant at Kalshoven-Gieskes Forum on International Humanitarian Law and a Guest lecturer of Public International Law at Al-Azhar University – Gaza. He worked as a Research Assistant to Dr. Robert Heinsch and Dr. Giulia Pinzauti in submitting their amicus curiae observations in the Situation in the State of Palestine to the Pre-Trial Chamber I of the International Criminal Court]

Introduction:

The Palestinian people have been facing injustices and denial of their basic human rights since the establishment of Israel in 1948 and the prolonged belligerent occupation of the Palestinian territory starting in 1967. The latest reports of B’Tselem and Human Rights Watch –concluding that Israel is committing Crimes Against Humanity (CAH) of apartheid and persecution– exposed the level of domination and segregation Israel has been imposing on the Palestinian people. Despite tremendous number of UN General Assembly and Security Council (UNSC) resolutions condemning Israeli policies, little actions have been done to help the Palestinian People to achieve their right to self-determination and to end the prolonged Israeli belligerent occupation. Notably, the right to self-determination is a fundamental human right that owed erga omnes. According to the International Court of Justice (ICJ), such obligations are by their very nature “the concern of all States” and, “In view of the importance of the rights involved, all States can be held to have a legal interest in their protection”, including Israel (See ICJ, Wall AO para. 155). Moreover, the right to self-determination enjoys an jus cogens character (see ILC, ARSIWA with commentaries, p.85, Cassese, p.365 & Shaw, p.320).

Nevertheless, little has been done to hold Israel and its officials accountable for the continuous well-documented violations of international –customary and humanitarian– law. More specifically, no meaningful action has been done to halt Israel’s expansion on Palestinian territory, in particular through settlements depriving Palestinian citizens of their homes, including in the occupied East Jerusalem and its Sheikh Jarrah neighbourhood. Such policy represents a clear colonial practice that constitutes a grave breach of the Fourth Geneva Convention (see Pictet, ICRC Commentary 1958, p. 283), and a war crime under the rules of the Rome Statute of the International Criminal Court (ICC).

This post intends to give an overview of the current situation and the latest events that have led to the current escalation, including the failure, of the UNSC in issuing a statement, let alone a resolution, condemning Israel’s settlements and the unlawful use of force against Palestinian civilians. In addition, this post touches upon the manifest Israeli Apartheid regime in the occupied Palestinian territory (OPT). Finally, this post discusses the ICC Prosecutor’s position regarding the situation in the OPT in general, and in Jerusalem and Sheikh Jarrah neighbourhood in particular.

An Overview of the Latest Events in Palestine/Israel:

In occupied Jerusalem, tensions have been aggravating since the start of the Holy month of Ramadan when Israeli police set up barricades at the Damascus Gate of the Old City, preventing Palestinians from gathering there. As clashes erupted and continued, the police removed the barricades, but tensions were already very high. Moreover, the threatened forced eviction of Palestinian families in Sheikh Jarrah neighbourhood escalated the crisis further. Clashes vented on the night of 7 May in Jerusalem between Palestinian protesters and Israeli police, in which hundreds of Palestinians were injured.

At the same time, Palestinians in the Gaza Strip (GS), West Bank (WB) including East Jerusalem (EJ), the Palestinian citizens of Israel, as well as Palestinian refugees in neighbouring states and all over the world have been demonstrating against the Israeli policies in Jerusalem and Sheikh Jarrah. Moreover, for months, Palestinian citizens of Israel have been protesting against Israeli police complicity and inaction towards the rise of organised crime in Palestinian towns in Israel. Palestinian citizens of Israel, who make up more than 20 % of the Israeli population, accuse the police and government of discriminating against them and not doing enough to stop crime in their towns compared to Israeli-Jewish towns. Notably, Israeli leaders have often described the Palestinian citizens of Israel as a “demographic threat” to the “Jewish character of the state of Israel.” (see also HRW, p. 44).

In the early hours of 10 May, Israeli armed forces stormed Al-Aqsa Mosque in the Al-Haram al-Sharif (the Noble Sanctuary) in the occupied EJ in an attempt to expel worshippers, ahead of a march by Zionist nationalists commemorating Israel’s seizure of EJ –a move that was never recognized by the international community and was deemed in flagrant violation of international law. Palestinians considered such a march as a very provocative move, especially during the Holy month of Ramadan and the holiest night of the Muslim calendar “Laylat al-Qadr”. In that raid, the Israeli police stormed the mosque, attacking worshipers, firing rubber bullets, stun grenades and tear gas. As a result, more than 300 Palestinians were injured.

Later that day, at 5 pm, Palestinian armed resistance groups (PARGs) in GS gave Israel an ultimatum of one hour, “until 06:00 p.m. (15:00 GMT) to withdraw its soldiers from Al-Aqsa Mosque and from EJ’s neighbourhood of Sheikh Jarrah and to release detained Palestinians in the recent Jerusalem uprising”. The Israeli authorities had asked the settlers to cancel their provocative march, but did not respond to the other demands. Just two minutes after the ultimatum passed, seven rockets were launched towards Israeli settlements in occupied Jerusalem. Subsequently, Israel launched a series of airstrikes on the GS, killing at least 21 Palestinians, including nine children. Shortly after, Israel military announced what has been dubbed the “Operation Guardian of the Walls” against the GS. At time of writing, at least 192 people, including 58 children and 34 women, have been killed in GS, while 10 Israelis, including 2 children, have been killed. Moreover, death tolls are on the rise. On 12 May, UN Special Coordinator for the Middle East Peace Process, Tor Wennesland, submitted to Israel and PARGs a proposal for an “immediate” cease-fire, but Israel rejected it; consequently, PARGs did not respond to the proposal.

So far, while 14 of the 15 members of the UNSC were in favour of adopting a joint declaration aimed at reducing tension, the US has blocked several attempts, claiming that “the [UNSC] meeting [was] a sufficient show of concern” and that “the US doesn’t see that a statement will help de-escalate”. The Palestinian ambassador to the UN published a letter calling on the UN and the international community to, “act with immediacy to demand that Israel cease its attacks against the Palestinian civilian population”. He also called on Israel to drop “plans to forcibly displace and ethnically cleanse Palestinians” from Jerusalem. The UNSC latest virtual open debate joined by Israeli and Palestinian representatives also ended with no concrete outcome. Further, it is unlikely that any future attempts will succeed in adopting a resolution due to the predictable US veto.

Apartheid – The Elephant in the Room!

Clive Baldwin, a senior legal advisor at HRW, accurately argues that in terms of international justice, Apartheid and Persecution have been the forgotten CAH. He further contends that CAH are rarely prosecuted before international courts and tribunals; those allegedly committed in the OPT are no exception. With that in mind, one might wonder whether CAH in the context of the OPT were merely forgotten or purposely excluded from international discussions. This absence of CAH, Apartheid in particular, has made it the elephant in the room.

The Apartheid Convention and Rome Statute set three elements for the crime of apartheid: “(1) an intent to maintain a system of domination by one racial group over another; (2) systematic oppression by one racial group over another; and (3) one or more inhumane acts, as defined, carried out on a widespread or systematic basis pursuant to those policies” (See HRW, p. 5-6). According to human rights experts, including in B’Tselem and Human Rights Watch, these elements have been met in the context of the situation in the OPT, concluding that the commission of the crime of Apartheid by the Israeli authorities is evident and well-documented. Yet, it has been completely left out by many states, although standing as fervent supporters of human rights, especially the US, European States like France – which prides itself on being the homeland of human rights, Canada or Australia, (hereinafter: “Western States”).

One of HRW recommendations to all states, was to “[i]ssue individual and collective public statements expressing concern about Israeli authorities’ commission of the crimes of apartheid and persecution.” However, not only Western States were reluctant to issue such statements, but they also failed – some even refused – in the light of the current events, to condemn the latest Israeli storming of Al-Aqsa Mosque and attacking worshipers, and the killing of children in GS. The exception lies in Simon Coveney, the Irish Minister for Foreign Affairs, comments, stating that: “[k]illing of children in conflict is never acceptable. Israel should be condemned for targeting Gaza with such tragic consequences.” Although he added: “[f]iring rockets from Gaza must be condemned”, the Israeli foreign ministry denounced this statement.

Notably, Western States, especially European, condemned PARGs indiscriminate rockets, and reaffirmed Israel’s right to self-defence. However, with complete ignorance – or some shy references – of the Palestinian suffering. Most importantly, such statements failed to condemn Israel’s abuses in EJ and GS; let alone, to recognise or mention Israel’s apartheid, that elephant in the room!

The ICC Prosecutor’s Reluctance Regarding the Situation in Palestine:

In its request to the Pre-Trial Chamber (PTC) on the territorial jurisdiction in Palestine, the Office of the Prosecutor (OTP) noted that “[t]here is a reasonable basis to believe that war crimes have been or are being committed in [OPT]” and that it has already “identified potential cases arising from the situation which would be admissible”. Yet, while the OTP request addressed war crimes, it had completely left out CAH – apartheid and persecution in particular – from its request. Subsequently, the PTC ruled that the “the Court’s territorial jurisdiction in the Situation in Palestine extends – in a quasi-automatic manner and without any restrictions – to the territories occupied by Israel since 1967, namely [GS and WB, including EJ].”

It must be noted that the OTP has the absolute authority to include allegations of the commission of CAH to its investigation. Notably, in it its subsequent statements on the initiation of an investigation on the situation in Palestine, the OTP mentioned that the investigation will cover “crimes within the jurisdiction of the Court” that allegedly have been committed since 13 June 2014. This general phrasing indicates that the door has been left open to include CAH. The OTP further noted that “priorities concerning the investigation will be determined in due time”. In the author’s view, now is the most appropriate time for the OTP to prioritize the situation in Palestine and to include CAH to in its investigation. Notably, in its recommendation to the ICC, HRW had already urged the OTP to “[i]nvestigate and prosecute individuals credibly implicated in the crimes against humanity of apartheid or persecution”. The author joins HRW in complete subscription of its recommendations to the OTP, and call upon colleagues around the world to consider doing the same. It is the author’s firm belief that international law scholars and practitioners have a moral and professional obligation to do so.

On 12 May, the Prosecutor commented on the recent escalation in the OPT. Oddly, her comment was only published on the ICC social media accounts and, to date, cannot be found on the ICC records. Further, her comment did not mention the imminent forced evictions of Palestinians in Sheikh Jarrah. In the author’s view, the OTP approach in this regard is incomprehensible. Although families of Sheikh Jarrah have already sent a communication to the Prosecutor urging her to “[p]ublicly condemn the imminent forced evictions of Palestinians in Sheikh Jarrah neighbourhood and urgently investigate” the matter, the OTP is yet to make a clear statement on this.

A very similar situation was in the Bedouin community of Khan al-Ahmar in the WB, which was also planned to be forcibly evicted. Back then, on 17 October 2018, the OTP said in a statement that “[e]vacuation by force now appears imminent, and with it the prospects for further escalation and violence”. On 22 December 2019, it was confirmed by the Israeli Foreign Minister that Israel did not evict Khan al-Ahmar “out of concerns of an ICC investigation”. This shows that a statement of the ICC Prosecutor can provide sufficient deterrence in such situations. Yet, in the situation in Sheikh Jarrah neighbourhood of EJ no similar statements have been made. Despite the fact that the PTC had already affirmed that the ICC has jurisdiction on the OPT in its entirety, i.e., WB, EJ and GS. Thus, one may wonder whether the ICC Prosecutor considers forced evictions in the WB and EJ any different?

Conclusion:

Academics and practitioners of international (criminal) law are very familiar with the phrase “unwilling or unable” used in the title of this piece. Indeed, it concerns the ICC complementarity principle which entails that states have priority in proceeding with cases within their jurisdiction, and a case is only admissible if a state is unwilling or unable to investigate crimes within the jurisdiction of the Court. By analogy, if the international community as a whole is unable (due to the US veto) or unwilling (considering the blatant double-standard positions of Western States) to hold Israel to account for its ongoing CAH, where can the Palestinians recourse to seek justice?

If one was to consider states as members of the international community, citizens of these states are their human foundation. International law intellectuals around the world have the responsibility to speak up on that matter and to put pressure on their governments to implement HRW recommendations (See HRW, p. 205). To start with, we must, courageously, call things in their accurate names and legal characterizations and call the Israeli regime imposed on the Palestinians as Apartheid. To conclude, I would like to leave you with a quate to contemplate. In his book “Representations of the Intellectual”, Palestinian-American literary theorist and public intellectual, Edward Said wrote:

“The central fact for me is, I think, that the intellectual is an individual endowed without a faculty for representing, embodying, articulating a message, a view, an attitude, philosophy or opinion to, as well as for, a public. And this role has an edge to it, and cannot be played without a sense of being someone whose place it is publicly to raise embarrassing questions, to confront orthodoxy and dogma (rather than to produce them), to be someone who cannot easily be co-opted by governments or corporations, and whose raison d’être is to represent all those people and issues that are routinely forgotten or swept under the rug. The intellectual does so on the basis of universal principles: that all human beings are entitled to expect decent standards of behavior concerning freedom and justice from worldly powers or nations, and that deliberate or inadvertent violations of these standards need to be testified and fought against courageously.”