ICC’s “Landmark Decision” Could Open Door to Prosecuting Israel for War Crimes in Palestine

AMY GOODMAN: This is Democracy Now!, democracynow.org, The Quarantine Report. I’m Amy Goodman.

The International Criminal Court has ruled it has the authority to investigate alleged Israeli war crimes in the Palestinian territories. Israel and the United States criticized the decision. Israel is not a member of the ICC, but the Palestinians joined the court in 2015. Israel has argued the court has no jurisdiction over the Occupied Territories because Palestine is not an independent state. But the ICC judges rejected that argument. The ruling comes two years after the ICC’s chief prosecutor found that, quote, “war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip,” unquote. On Saturday, Palestinian Foreign Minister Riyad al-Maliki welcomed the ICC’s decision.

RIYAD AL-MALIKI: Israel has been always been treated above the law. There is no accountability when it comes to Israel. Now no one, including the United States of America, could really provide protection to Israel. You know that always when we go to the Security Council, the United States of America is the one who really shields Israel from any criticism and prevents us from getting whatever sanctions needed against Israel. Today, United States of America cannot do anything to protect Israel. And as a result, Israel has to be treated as a war criminal.

AMY GOODMAN: Israeli Prime Minister Benjamin Netanyahu blasted the International Criminal Court, accusing it of engaging in, quote, “pure anti-Semitism.” Meanwhile, the Biden administration said it had, quote, “serious concerns” with the ICC’s ruling. The court’s decision could also result in war crimes probes targeting Hamas and other Palestinian factions.

Part of the ICC’s probe is expected to look at Israel’s 2014 assault on Gaza, in which 2,100 Palestinians died. Gaza resident Tawfiq Abu Jama lost 24 members of extended family in the assault. He spoke Saturday.

TAWFIQ ABU JAMA: [translated] When I heard about the decision, I was very happy about it. But I doubt that the world countries and the world courts will be able to take the occupation to trial. We hope the decision is true and it will actually take them to trial and bring justice for the children that were killed in the wars.

AMY GOODMAN: We go now to Gaza City, where we’re joined by Raji Sourani, the award-winning human rights lawyer and director of the Palestinian Center for Human Rights in Gaza, past winner of the Robert F. Kennedy Human Rights Award and the Right Livelihood Award.

Welcome to Democracy Now! It’s great to have you with us. Raji, can you start off by responding to the International Criminal Court’s decision?

RAJI SOURANI: It’s a great decision, Amy. It’s a decision who made history, for not the Palestinians only, not the Palestinian victims only, but for victims across the globe. I think, with this decision, we can assure that the independence and the credibility of the ICC restored, and the blanket of fear, which was spread all over the court due to Trump executive order, has been erased. So, now ICC can function independently and according to the legal obligation it has.

AMY GOODMAN: So, what will this mean for Israel, for IDF and for the Palestinians?

RAJI SOURANI: That Israel, for the first time ever in history, will be in the most important court on Earth, being charged of war crimes, crimes against humanity and persecution for Palestinian civilians. And it will be held accountable, hopefully, at least in five cases: one, the blockade on the Gaza Strip; and the second on the settlement policies; and, three, on the offensive on the Gaza Strip 2014; the pillage; and the Great March of Return. Israel will face charges, and it should be held accountable on it.

AMY GOODMAN: On Saturday, Prime Minister Benjamin Netanyahu, the Israeli prime minister, denounced the International Criminal Court’s decision.

PRIME MINISTER BENJAMIN NETANYAHU: When the ICC investigates Israel for fake war crimes, this is pure anti-Semitism. The court established to prevent atrocities, like the Nazi Holocaust against the Jewish people, is now targeting the one state of the Jewish people.

AMY GOODMAN: So, that’s the Israeli prime minister on Saturday. Today, he walked out of his own corruption trial. Raji Sourani, your response?

RAJI SOURANI: A, I think this court, it’s not political. And this is our main, I mean, theme on this, all what we wanted as the Palestinian — as representative of Palestinian victims: the rule of law. We don’t want a political court. And that’s, I mean, what ICC showed. The ICC was threatened by Trump, by Pompeo and by the Israeli prime minister himself. And that was the political dimension.

The second point, why Israel afraid of court of law? This is the most important court on Earth. It’s the crème de la crème of the human experience. And all what it wants to do, to bring accountability to those who are suspected of committing war crimes. Israel do have the crème de la crème of lawyers, judges, scholars, jurists. Why they don’t go there and defend themselves? This is not a Palestinian court. This is an international court with international judges, and, most important, that it’s independent and it’s professional.

We, the Palestinians, we are in need, in bad need, to bring justice and dignity for the people. And we need the ICC for that. And at the same time, ICC needs the Palestinians, because it should restore its credibility and independence. That’s all what we want: rule of law.

AMY GOODMAN: I wanted to get your response, Raji, to State Department spokesperson Ned Price. So, this is the Biden administration, not the Trump administration, issuing a statement Friday expressing, quote, “serious concerns” about the ICC’s ruling. He said, “As we made clear when the Palestinians purported to join the Rome Statute in 2015, we do not believe the Palestinians qualify as a sovereign state, and therefore are not qualified to obtain membership as a state, or participate as a state in international organizations, entities, or conferences, including the ICC.” So this is the Biden administration.

RAJI SOURANI: It seems the American administration mix up between two things: between the court and the American administration. The American administration, it’s not the court. The court is the ICC, and the judges are ICC judges. So, U.S. do have had clear-cut position. Since day one of the ICC, they refuse to sign and ratify Rome Statutes. They refuse to be part of the ICC. So they didn’t join it. Israel didn’t join, as well, the ICC from day one. U.S. and Israel among the states who didn’t join that. That’s why it’s very hard to accept, Amy, the American administration argument.

Trump administration made an executive order, hold accountable not only the prosecutor and its aides, not the judges, those who are functioning at the ICC, but also the American lawyers who can help in bringing any accountable, by imprisoning them, by fining them. Now, what I want to say in this regard, that Biden administration, if they don’t cancel the executive order of Trump, they will commit a great and a grave mistake. Second, we understand why this American position like this, because U.S. committed crimes in Afghanistan, in Iraq, in Syria and different parts of the world, and they can be held accountable for the same reasons Israel will be held accountable for.

AMY GOODMAN: We’re talking to Raji Sourani, the famed international human rights lawyer, in Gaza City. We’re also joined by Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights, legal representative for Palestinian victims in front of the International Criminal Court. Katherine, if you could respond to the ICC’s decision and the Biden administration’s response that it has grave concerns, and who it is you represent before the ICC?

KATHERINE GALLAGHER: Sure. And good morning, Amy. And it really is a privilege to be on this morning with Raji Sourani. This is a landmark decision. And I think no one should be mistaken in recognizing that the ICC has moved to open this investigation, moved to end impunity for crimes committed on the territory of Palestine, because of the hard work, the decades-long hard work, and professionalization of people like Raji Sourani, of Palestinian human rights organizations like his, PCHR, Al-Haq, Al-Dameer, Al Mezan, Defense for Children International Palestine. All of these groups have worked for decades documenting abuses and ensuring that the international community knows about them, hears about them, and ultimately gives some measure of accountability.

In terms of what this decision practically means, it means that the prosecutor can proceed to open investigations on the complete territory of Palestine, the West Bank, including East Jerusalem, and Gaza Strip. I have the privilege to represent Palestinians from Gaza, from the West Bank, including East Jerusalem, and from the diaspora, in putting forward a submission urging the court to recognize its jurisdiction over Palestine. And I’ve urged that the prosecutor open an investigation into the crime against humanity of persecution. This is one of many crimes that Israeli officials — and I think it’s important to emphasize that the ICC looks at individual criminal responsibility, not state responsibility. The Palestinians I represent have been denied their rights to life, to be free from torture, to family unity, to access healthcare, to freedom of movement, to rights to livelihood. There are just an array of violations that have been going on for years. And now the ICC, the International Criminal Court, is on the threshold of opening an investigation into crimes that go back to 2014.

I was disappointed, definitely, on Friday evening, when the U.S. State Department spokesperson under the Biden-Harris administration came out against this historic ruling. It’s notable that just the day before, the State Department put out another press release regarding the ICC in the case of the announcement of the Ongwen verdict. This is a case that the United States had given some technical support to during the Obama-Biden administration. So, what we’re seeing here, as Raji said, it’s not the ICC that is playing politics; it is those outside the ICC. They’ve put tremendous political pressure on the court, on other member states of the court, and we’ve seen already today and over the weekend Israel saying that it’s going to turn to allies in the European Union and others to give some kind of political protection, which is deeply disappointing.

This is an independent court, and it should be able to operate independently. But the fact that the Biden administration, the Biden-Harris administration, is continuing the Trump line so far of objecting to investigations by the ICC and, most critically, keeping the ICC prosecutor Fatou Bensouda on a sanctions list and keeping in place, as Raji mentioned, an executive order that not only could lead to further sanctions of those who support investigations of Israeli officials, or Americans or others for crimes committed in Afghanistan, but it can also provide civil and criminal penalties against anyone who supports those investigations by the prosecutor. So, that could include U.S. citizens and certainly Palestinian citizens. So this work is not without risk, but it is critically important that it proceed. And we really do call upon the Biden administration to lift the executive order. I would like it if it supported the investigation. It doesn’t need to do that. At minimum, it needs to stop obstructing justice.

AMY GOODMAN: And on this issue, finally, Raji Sourani, what you want to see investigated by the International Criminal Court? And if the chief prosecutor Fatou Bensouda is replaced, can another chief prosecutor overturn this?

RAJI SOURANI: Well, I hope that Bensouda take decision soon, this week or the week after, and decide about opening the investigation and to appoint her team to proceed with that. This is something. I mean, we, as representative of victims, who see all these war crimes and atrocities have been committed against our people, we look to their eyes. We know them by names. And we know the members of the family. We know the suffering, I mean, they passed through. And me personally, I invested 43 years of my life to wait for this day, to see the ICC decide on opening their investigation against the Israeli suspected war criminals. So, we hope and we are full of optimism that this will proceed smoothly in the court. And we invest our best professionally to bring justice, dignity to the Palestinian victims.

I hope that a new prosecutor will be elected soon. There was quite a lot of hassle around this aspect. It was supposed to be elected last December. It didn’t work, and it was delayed. And they opened the candidacy again. I hope soon they will be able to select and elect a new prosecutor to replace Bensouda when she leaves the office at the due time. I am full of hope that the prosecutor, the coming prosecutor, will act as Bensouda, which was great example for us, for somebody who represent the legal cultures of the world, to act, with their responsibility, with their independence, with their professionalism, to bring justice for victims across the globe.