The ICC Decides to Investigate War Crimes in West Bank and Gaza
The Court could also issue a formal ruling on whether it has jurisdiction to investigate war crimes in the Occupied Territories, thereby removing ambiguity regarding a key Israeli government argument against it.
As Israel moves toward its third round of elections in less than a year, Prime Minister Benjamin Netanyahu is desperate to find a way to hold on to power. More than vain self-interest motivates him now, as he hopes that being a sitting (and re-confirmed) prime minister will make it impossible for him to be tried, convicted, and eventually jailed for the corrupt dealings with which he has been charged.
Netanyahu was doubtless overjoyed to hear that the International Criminal Court (ICC) in the Hague has decided there was sufficient cause to investigate whether war crimes had been committed by Israel in the West Bank and Gaza Strip over past five and a half years. The announcement provided him with exactly the kind of target he likes best, one that allows him to claim that Israel is being singled out, persecuted, held to an unfair standard, and all because of antisemitism.
That assertion is absurd on its face, and hardly worth examining. Israel’s human rights record is open for all to see, and it’s not pretty. Moreover, the ICC isn’t investigating Israel; it is investigating the conflict in the occupied territories, and that investigation includes all parties involved. That’s just one of several key points that need to be understood regarding the ICC investigation.
Will There Be Real Consequences to the ICC Investigation?
It goes without saying that Israel — which is not a party to the Rome Statute, the agreement that created the ICC and that outlines its powers, rules, and procedures — will ignore any conclusions the ICC reaches. It will be supported in doing so by the United States — which, like Israel, has declared that it has no intention of ratifying the Rome Statute and has been generally uncooperative with the ICC and international legal structures in general.
Yet despite this, Israel reacted very sharply to the announcement of an ICC investigation. One reason for this is that the ICC deals with individual accountability for war crimes. Therefore, Israeli officials could face charges for war crimes, something that has been a concern for Israeli leaders for many years.
But Washington’s protection should be an effective shield against Israeli leaders facing arrest and trial. The bigger concern for Israel is political. While few in Israel or the United States who are not already critics of Israeli policy are likely to change their minds due to an ICC ruling, it could have a greater effect in places, like Europe, where public opinion of Israel is less than uniformly positive. An ICC ruling that designated Israeli war crimes could reinforce the negative perceptions of Israel in many sectors, lending weight to efforts to stop selling arms to Israel, or to the Boycott, Divest and Sanctions (BDS) movement
Why Won’t the ICC Be Investigating Hamas as Well?
Actually, it will. According to Noa Landau in the Israeli daily, Haa’retz, “…the front page of the Yedioth Ahronoth newspaper on Sunday mentioned Hamas, under a headline that said: ‘They are not investigating them.’” But the investigation announced by the ICC is territorially based. It is looking at all the participants in hostilities in the West Bank and Gaza — Israeli and Palestinian — over the past five years.
Announcing the investigation, ICC prosecutor Fatou Bensouda said “I am satisfied that (i) war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip … (ii) potential cases arising from the situation would be admissible; and (iii) there are no substantial reasons to believe that an investigation would not serve the interests of justice.” No specific party was mentioned.
This was something the Palestinian Authority was aware of when it made the referral to the ICC last year. The Court’s ruling last week, which prompted the prosecutor’s announcement, explicitly noted war crimes allegedly committed by all parties, Israeli and Palestinian. Ultimately, this makes sense for the Palestinians on every level. For the PA in particular, its forces may have committed many human rights violations, but over the period of time under investigation there are few, if any, incidents that could be classified as “war crimes,” simply because the PA has not been involved in armed conflict with Israel or anyone else over that period.
Hamas has signaled in the past that it rejects charges of war crimes in its actions against Israel, and, much like Israel, it has routinely refused to cooperate with international investigations. Yet even so, Hamas is aware that they have much less to lose than Israel in the ICC investigations. The sheer scope of destruction Israel is capable of, on top of the fact that Israel’s siege of Gaza is largely responsible for the extreme vulnerability of the people living there, means that Israel will inevitably absorb the lion’s share of the attention in the investigation, as it should. Israel’s greater capabilities also mean a far greater ability to avoid civilian casualties.
Does the ICC Have the Jurisdiction to Investigate These Claims?
Israel contends that, since Palestine has no territory over which it exercises full sovereignty, it is not a sovereign state and thus has no standing at the ICC to refer a case for investigation. The Rome Statute, however, says that a “State Party” to the Statute may refer a case for investigation. Palestine became a State Party to the Rome Statute in 2015, after being granted non-member status in the U.N. General Assembly in 2012. The fact that the Court accepted Palestine as a “State Party” in 2015 would seem, therefore, to grant it the required status. However, because there is no specific regulation in either the U.N. Charter or the Rome Statute that perfectly fits this unusual situation, Palestine’s standing at the ICC is ambiguous enough to allow Israel to make this argument.
Bensouda would seem to have anticipated Israel’s contention and therefore requested that the Court make a formal decision specifically about the ICC’s jurisdiction in the West Bank and Gaza rather than rely on the widespread interpretation of international legal scholars. The fact that an ICC ruling in 2012 — three years before Palestine signed on to the Rome Statute and several months before it received non-member status at the UNGA — stated that Palestine lacked the standing to request an ICC investigation indicates that, now that it has signed on to the statute, the Court is very likely to rule that it has the required jurisdiction.
Bensouda’s decision to get a ruling on the question of jurisdiction has been met with some frustration. Kenneth Roth of Human Rights Watch said that “Palestinian and Israeli victims have faced a wall of impunity for serious violations committed against them for long enough. The prosecutor should have proceeded directly with a formal probe as was within her power to do.”
Roth’s impatience is more than understandable and is undoubtedly felt far more deeply by Palestinians. It has been almost five years since the ICC prosecutor opened a preliminary investigation, and it is only now that the prosecutor has decided that the results of that investigation merited an actual investigation into specific war crimes. The wheels of ICC justice grind absurdly slowly.
But Roth underestimates the importance of the Court making a definitive ruling on its jurisdiction here. When this ruling is made, there will be a specific piece of jurisprudence from the ICC on the Palestinian territories rather than just the overwhelming consensus of international legal scholars based on broad principles of international humanitarian law.
This is a very big deal for the future. This Court is very likely to affirm its jurisdiction, particularly considering the strength of its preliminary ruling.
Of course, shielded by Washington, Israel will almost certainly ignore any judgment against it. Thus, it's not going to matter on the ground immediately. But in terms of international law, the ambiguity will be removed.
That ambiguity has served Israel very well, and it has inflicted serious harm on the Palestinians in places like Europe, where people and governments still consider international law relevant and important. Ambiguity allows people to stay on the sidelines “until the dispute is resolved,” and that has been a condition of which Israel has taken full advantage over the decades. Ending that ambiguity could ultimately prove a game-changer in the 70-plus-year-old conflict. And then we’ll see about war crimes.
Mitchell Plitnick is president of ReThinking Foreign Policy. His previous positions include vice president at the Foundation for Middle East Peace, director of the US Office of B’Tselem, and co-director of Jewish Voice for Peace.
The International Criminal Court building in The Hague (source: International Criminal Court)
Ukraine would consider inviting Russian officials to a peace summit to discuss Kyiv’s proposal for a negotiated end to the war, according to Andriy Yermak, the Ukrainian president’s chief of staff.
“There can be a situation in which we together invite representatives of the Russian Federation, where they will be presented with the plan in case whoever is representing the aggressor country at that time will want to genuinely end this war and return to a just peace,” Yermak said over the weekend, noting that one more round of talks without Russia will first be held in Switzerland.
The comment represents a subtle shift in Ukrainian messaging about talks. Kyiv has long argued that it would never negotiate with Russian President Vladimir Putin, yet there is no reason to believe Putin will leave power any time soon. That realization — along with Ukraine’s increasingly perilous position on the battlefield — may have helped force Kyiv to reconsider its hard line on talking with the widely reviled Russian leader.
Zelensky hinted at a potential mediator for talks following a visit this week to Saudi Arabia. The leader “noted in particular Saudi Arabia’s strivings to help in restoring a just peace in Ukraine,” according to a statement from Ukrainian officials. “Saudi Arabia’s leadership can help find a just solution.”
Russia, for its part, has signaled that it is open to peace talks of some sort, though both Kyiv and Moscow insist that any negotiations would have to be conducted on their terms. The gaps between the negotiating positions of the two countries remain substantial, with each laying claim to roughly 18% of the territory that made up pre-2014 Ukraine.
Ukraine’s shift is a sign of just how dire the situation is becoming for its armed forces, which recently made a hasty retreat from Avdiivka, a small but strategically important town near Donetsk. After months of wrangling, the U.S. Congress has still not approved new military aid for Ukraine, and Kyiv now says its troops are having to ration ammunition as their stockpiles dwindle.
Zelensky said Sunday that he expects Russia to mount a new offensive as soon as late May. It’s unclear whether Ukrainian troops are prepared to stop such a move.
Even the Black Sea corridor — a narrow strip of the waterway through which Ukraine exports much of its grain — could be under threat. “I think the route will be closed...because to defend it, it's also about some ammunition, some air defense, and some other systems” that are now in short supply, said Zelensky.
As storm clouds gather, it’s time to push for peace talks before Russia regains the upper hand, argue Anatol Lieven and George Beebe of the Quincy Institute, which publishes Responsible Statecraft.
“Complete victory for Ukraine is now an obvious impossibility,” Lieven and Beebe wrote this week. “Any end to the fighting will therefore end in some form of compromise, and the longer we wait, the worse the terms of that compromise will be for Ukraine, and the greater the dangers will be for our countries and the world.”
In other diplomatic news related to the war in Ukraine:
— Hungary finally signed off on Sweden’s bid to join NATO after the Swedish prime minister met with Hungarian Prime Minister Viktor Orban in Budapest, according to Deutsche Welle. What did Orban get for all the foot dragging? Apparently just four Swedish fighter jets of the same model that it has been purchasing for years. The prime minister blamed his party for the slow-rolling, saying in a radio interview prior to the parliamentary vote that he had persuaded his partisans to drop their opposition to Sweden’s accession.
— French President Emmanuel Macron sent allies scrambling Tuesday when he floated the idea of sending NATO troops to Ukraine, according to the BBC. Leaders from Germany, the United Kingdom, Italy, Poland, and other NATO states quickly swatted down the idea that the alliance (or any individual members thereof) would consider joining the war directly. Russia said direct conflict with NATO would be an “inevitability” if the bloc sent troops into Ukraine.
— On Wednesday, Zelensky attended a summit in Albania aimed at bolstering Balkan support for Ukraine’s fight against Russia, according to AP News. The Ukrainian leader said all states in the region are “worthy” of becoming members of NATO and the European Union, which “have provided Europe with the longest and most reliable era of security and economic development.”
— Western officials were in talks with the Kremlin for a prisoner swap involving Russian dissident Alexei Navalny prior to his death in a Russian prison camp in February, though no formal offer had yet been made, according to Politico. This account contrasts with the one given by Navalny’s allies, who claimed that Putin had killed the opposition leader in order to sabotage discussions that were nearing a deal. Navalny’s sudden death has led to speculation about whether Russian officials may have assassinated him, though no proof has yet surfaced to back up this claim. There is, however, little doubt that the broader deterioration of the dissident’s health was related to the harsh conditions he was held under.
U.S. State Department news:
In a Tuesday press conference, State Department spokesperson Matthew Miller said the situation on the frontlines in Ukraine is “extremely serious.” “We have seen Ukrainian frontline troops who don’t have the ammo they need to repel Russian aggression. They’re still fighting bravely. They’re still fighting courageously,” Miller said. “They still have armor and weapons and ammunition they can use, but they’re having to ration it now because the United States Congress has failed to act.”
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Janet Yellen, United States Secretary of the Treasury. (Reuters)
On Tuesday, U.S. Treasury Secretary Janet Yellen strongly endorsed efforts to tap frozen Russian central bank assets in order to continue to fund Ukraine.
“There is a strong international law, economic and moral case for moving forward,” with giving the assets, which were frozen by international sanctions following Russia’s 2022 invasion of Ukraine, to Kyiv, she said to reporters before a G7 meeting in San Paulo.
Furthermore on Wednesday, White House national security communications adviser John Kirby urged the use of these assets to assist the Ukrainian military.
This adds momentum to increasing efforts on Capitol Hill to monetize the frozen assets to assist the beleaguered country, including through the “REPO Act,” a U.S. Senate bill which was criticized by Senator Rand Paul (R-Ky.) in a recent article here in Responsible Statecraft. As Paul pointed out, spending these assets would violate international law and norms by the outright seizure of sovereign Russian assets.
In the long term, this will do even more to undermine global faith in the U.S.-led and Western-centric international financial system. Doubts about the system and pressures to find an alternative are already heightened due to the freezing of Russian overseas financial holdings in the first place, as well as the frequent use of unilateral sanctions by the U.S. to impose its will and values on other countries.
The amount of money involved here is considerable. Over $300 billion in Russian assets was frozen, mostly held in European banks. For comparison, that’s about the same amount as the entirety of Western aid committed from all sources to Ukraine since the beginning of the war in 2022 — around $310 billion, including the recent $54 billion in 4-year assistance just approved by the EU.
Thus, converting all of the Russian assets to assistance for Ukraine could in theory fully finance a continuing war in Ukraine for years to come. As political support for open-ended Ukraine aid wanes in both the U.S. and Europe, large-scale use of this financing method also holds the promise of an administrative end-run around the political system.
But there are also considerable potential downsides, particularly in Europe. European financial institutions hold the overwhelming majority of frozen Russian assets, and any form of confiscation could be a major blow to confidence in these entities. In addition, European corporations have significant assets stranded in Russia which Moscow could seize in retaliation for the confiscation of its foreign assets.
Another major issue is that using assets to finance an ongoing conflict will forfeit their use as leverage in any peace settlement, and the rebuilding of Ukraine. The World Bank now estimates post-war rebuilding costs for Ukraine of nearly $500 billion. If the West can offer a compromise to Russia in which frozen assets are used to pay part of these costs, rather than demanding new Russian financing for massive reparations, this could be an important incentive for negotiations.
In contrast, monetizing the assets outside of a peace process could signal that the West intends to continue the conflict indefinitely.
In combination with aggressive new U.S. sanctions announced last week on Russia and on third party countries that continue to deal with Russia, the new push for confiscation of Russian assets is more evidence that the U.S. and EU intend to intensify the conflict with Moscow using administrative mechanisms that won’t rely on support from the political system or the people within them.
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Activist Layla Elabed speaks during an uncommitted vote election night gathering as Democrats and Republicans hold their Michigan presidential primary election, in Dearborn, Michigan, U.S. February 27, 2024. REUTERS/Rebecca Cook
A protest vote in Michigan against President Joe Biden’s handling of the war in Gaza dramatically exceeded expectations Tuesday, highlighting the possibility that his stance on the conflict could cost him the presidency in November.
More than 100,000 Michiganders voted “uncommitted” in yesterday’s presidential primary, earning 13.3% of the tally with most votes counted and blasting past organizers’ goal of 10,000 protest votes. Biden won the primary handily with 81% of the total tally.
The results suggest that Biden could lose Michigan in this year’s election if he continues to back Israel’s campaign to the hilt. In 2020, he won the state by 150,000 votes while polls predicted he would win by a much larger margin. This year, early polls show a slight lead for Trump in the battleground state, which he won in 2016 by fewer than 11,000 votes.
“The war on Gaza is a deep moral issue and the lack of attention and empathy for this perspective from the administration is breaking apart the fragile coalition we built to elect Joe Biden in 2020,” said Rep. Pramila Jayapal (D-Wash.), a progressive leader who has called for a ceasefire in Gaza, as votes came in last night.
Biden still has “a little bit of time to change this dynamic,” Jayapal told CNN, but “it has to be a dramatic policy and rhetorical shift from the president on this issue and a new strategy to rebuild a real partnership with progressives in multiple communities who are absolutely key to winning the election.”
Rep. Ro Khanna, a prominent Biden ally, told Semafor the vote is a “wake-up call” for the White House on Gaza.
The “uncommitted” option won outright in Dearborn, a Detroit suburb with a famously large Arab American population. The protest vote also gained notable traction in college towns, signaling Biden’s weakness among young voters across the country. “Uncommitted” received at least 8% of votes in every county in Michigan with more than 95% of votes tallied.
The uncommitted campaign drew backing from prominent Democrats in Michigan, including Rep. Rashida Tlaib (D-Mich.) and state Rep. Abraham Aiyash, who is the majority leader in the Michigan House. Former Reps. Andy Levin and Beto O’Rourke, who served as a representative from Texas, also lent their support to the effort.
“Our movement emerged victorious tonight and massively surpassed our expectations,” said Listen to Michigan, the organization behind the campaign, in a statement last night. “Tens of thousands of Michigan Democrats, many of whom [...] voted for Biden in 2020, are uncommitted to his re-election due to the war in Gaza.”
Biden did not make reference to the uncommitted movement in his victory speech, but reports indicate that his campaign is spooked by the effort. Prior to Tuesday’s vote, White House officials met with Arab and Muslim leaders in Michigan to try to assuage their concerns about the war, which has left about 30,000 Palestinians dead and many more injured. (More than 1,100 Israelis died during Hamas’s Oct. 7 attacks last year.)
The president argues that his support for Israel has made it possible for him to guide the direction of the war to the extent possible, though his critics note that, despite some symbolic and rhetorical moves, he has stopped far short of holding back U.S. weapons or supporting multilateral efforts to demand a ceasefire.
Campaigners now hope the “uncommitted” effort will spread to other states. Minnesota, which will hold its primaries next week, is an early target.
“If you think this will stop with Michigan you are either the president or paid to flatter him,” said Alex Sammon, a politics writer at Slate.
Meanwhile in the Republican primary, former President Donald Trump fended off a challenge from former South Carolina governor Nikki Haley. With 94% of votes in, Trump came away with 68% of the vote, while Haley scored around 27%.