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Only the International Criminal Court in The Hague Can Restrain Israel

Hagai El-Ad
Hagai El-Ad
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The International Criminal Court in the Hague, Netherlands, February 6, 2020.
The International Criminal Court in the Hague, Netherlands, February 6, 2020.Credit: Peter Dejong,AP
Hagai El-Ad
Hagai El-Ad

In the summer of 2014 we killed over 500 Palestinian children in the Gaza Strip, in surgical strikes and so-called statistical bombings. Then-Prime Minister Benjamin Netanyahu, and then-Israel Defense Forces Chief of Staff Benny Gantz now head the country’s two largest parties.

In the fall of 2017 then-Defense Minister Avigdor Lieberman, head of Yisrael Beiteinu, declared his intention of totally destroying the , including the local school and the tin shacks that are home to over 30 families, all of them Palestinian, of course. The Supreme Court judges reiterated their approval of the “legality” of the demolition.

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In the winter of 2020, U.S. President Donald Trump for American recognition of Greater Israel, which would include the entire area between the Jordan River and the Mediterranean – without granting citizenship, human rights or the right to vote to the millions of Palestinians living there.

The plan dictates total Palestinian submission, while it publicly exposes Israel’s aspiration to continue with its demographic engineering of the area according to its wishes – from Wadi Ara in the north, via the Jerusalem neighborhoods beyond the separation barrier and up to the last of the villages in Area C (which are under full Israeli control). And Netanyahu, Lieberman and Gantz? They welcomed this plan.

How many children will be killed in this summer? How many additional Palestinian communities will be destroyed in the coming years? What will life look like under a regime that aspires to perpetuate its supremacy over another people? And what are we willing to do in order to say to all that – enough!

The children in Gaza did not “find their deaths.” Someone planned how houses would be bombed from the air, and someone decided that it was “legal,” and someone gave the order, and after another family was erased from the world along with its children, someone whitewashed the whole story, until the next bombing.

And the bulldozers that destroy buildings in the “areas of sovereignty” don’t drive themselves. Someone planned a whole system whose goal is to deny Palestinians approval for construction, and someone decided that this is “legal,” and someone issued the demolition orders and someone ordered their implementation.

The system of the regime whose objective is to advance one people at the expense of trampling the other, did not create itself: There is someone heading it, leading it, executing its directives.

And in order to make everything possible, those who are opposed must be silenced. This is why the Israeli ambassador to the United Nations called Palestinian efforts to oppose the Trump plan “diplomatic terror,” because any Palestinian effort to demand rights or freedom must be framed as terror. This is why Netanyahu hastened to slam the “anti-Semitic decrees” of the International Criminal Court in The Hague, and this is why Israeli human rights organizations that actively oppose the occupation must be portrayed as traitors, as disloyal.

Well, it’s true. We are disloyal: We are not loyal to a regime that favors occupation, repression, violence and humiliation of another people; we are betrayers of the vision of apartheid, subverting a future of injustice. It’s true, the question of loyalty now lies in the balance: To which values are we loyal?

We are loyal to human rights, equality and freedom. We are faithful to the attempt to build a future based on these values between the Jordan River and the sea. This loyalty has led us to call on the UN Security Council to demand international action to bring an end to the occupation. That same loyalty has caused us to call on IDF soldiers to refuse illegal orders to shoot from a distance at thousands of Palestinian demonstrators at the separation barrier with the Gaza Strip.

And this is the same loyalty that is now turning its gaze in the direction of the only international legal authority that can deal with the situation in the territories – – while unequivocally supporting the authority of the court to open an investigation, to demand accountability for war crimes.

After all, if nobody ever receives significant punishment, nothing will change. That is exactly what Israel’s government wants. But if it is decided that the ICC has jurisdiction, an in The Hague – and the country may finally have to begin to consider the possibility that there will be a price to pay for its crimes against the Palestinians.

Although the present proceedings underway in The Hague are limited to the issue of whether the court has the authority to adjudicate, Israel’s entire political leadership is united against it – similar to the way in which it is united in its support for the Trump plan. Netanyahu himself, as mentioned, hastened to compare the court’s actions to anti-Semitic decrees, went on to call for sanctions against the ICC, “its officials, its prosecutors, everyone,” and a few days ago sent a delegation to Washington to enlist the Trump administration in waging a joint battle against the court.

These steps by the government, already at this stage, reveal that what lies at the root of the Israeli opposition here is not a theoretical matter of issues of jurisdiction, but a basic questioning of the values that the ICC is meant to defend – values that Israel wants to continue to trample while continuing to enjoy total immunity regarding its deeds in the territories, as it has become accustomed to doing.

In December, several hours before publication of the ICC prosecutor’s announcement that she had reached the conclusion that there is a basis for embarking on an investigation, Israel’s attorney general published his position on the subject. Since he is the one whose position represents that of the government, it is vital to expose the groundless nature of his opinion, which is based on partial and tendentious citations taken out of context, disregard for the dictates of international law and a baseless perception of reality.

We are living in a world in which the number of effective options for defending human rights is gradually shrinking. We have no illusions: The ICC offers – at best – a limited degree of belated justice. But the Israeli system is so accustomed to a situation of total lawlessness, to a situation in which almost anything can be done to the Palestinians without paying a price, that even the little that the ICC can provide could cause Israel to consider a new path.

Even before the ICC prosecutor’s decision in December, Israel had refrained from destroying Khan al-Ahmar – due to fear of The Hague, according to the statement of Foreign Minister Israel Katz. We can assume that the new reality, in which there is a possible horizon for being called to account, could constitute an important restraint on further activity by Israel.

In The Hague they will decide in the coming months whether the court has jurisdiction over the situation in the territories. Such authority has existed since Palestine joined the Rome Statute (and a long series of other conventions), as the prosecutor states. There is no minimizing the importance of this decision, which on the face of it seems merely procedural.

If the ICC judges indeed decide to adopt the opinion of the main prosecutor, an investigation will begin. But if they decide otherwise, the investigation will end before it starts. That would serve as a glaring green light for Israel, in a world where few red lights remain. We can only hope that the court will adopt the opinion of the prosecutor, and decide: There is jurisdiction – and there will be an investigation.

The writer is the director general of B’Tselem, the Israeli Information Center for Human Rights in the Occupied Territories.

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