Is their any justice for Gaza?

The International Criminal Court has to take a
number of issues into consideration before launching
an investigation.
On July 25 , Palestinian officials filed a criminal
complaint with the International Criminal Court (ICC )
in The Hague. The complaint accuses Israel of war
crimes as a result of its ongoing campaign in Gaza ,
which has now left more than 1 ,200 Palestinians and
53 Israeli soldiers dead. The filing alleges crimes
including the crime of apartheid , attacks against
civilians, excessive loss of human life and crime of
colonisation.
The immediate response from the Israeli government
is that it will need to consider the new filing , but
according to Foreign Ministry Spokesman, Paul
Hirchson , " The Israeli military is working 100
percent within the dictates of international
humanitarian law ." There are now counter
allegations emerging from Tel Aviv that the
responsibility lies with Hamas and not the Israeli
Defence Force (IDF ) .
It is important to point out that the ICC investigates
situations and therefore if it opens an investigation , it
will look into the conduct of all sides to the conflict ,
including Hamas , IDF and other groups involved in
the hostilities. It will then determine responsibility.
Will there be an investigation?
There are a number of issues that the ICC will have
to take into consideration before launching an
investigation .
First is the question of jurisdiction . It has to be
determined whether the conduct in question falls
within the crimes set out in the Rome Statute . On
July 23, the outgoing UN High Commissioner for
Human Rights, Navanethem Pillay , condemned both
Israel and Hamas for failing to protect civilians and
stated that "there seems to be a strong possibility
that international law has been violated, in a manner
that could amount to war crimes ."
The Israeli position is that it has only selected
military targets and is acting in self -defence , but it
is difficult to understand how the targeting of a
hospital or a school constitutes a legitimate military
target. There is also strong evidence of Israel
targeting unarmed civilians, including children.
While the debate will continue for some time, there
does not appear to be any dispute , irrespective of
whether one adopts the Palestinian or Israeli line ,
that crimes within the jurisdiction of the ICC have
been committed .
Second , the ICC is limited to dealing with crimes that
have occurred since the Rome Statute went into
effect on July 1 , 2002. This requirement has been
clearly met.
Third , the ICC has to weigh territorial jurisdiction ;
that is , whether the state in question has ratified or
accepted the jurisdiction of the ICC or the situation
has been referred to the ICC following a UN Security
Council resolution.
There is a provision according to which the ICC can
exercise jurisdiction over "The State of which the
person accused of the crime is a national." For
example , if the ICC gained jurisdiction over Palestine
(either by state party referral , Security Council
referral , or proprio motu request) , it could have
jurisdiction over an Israeli committing a war crime on
Palestinian territory even though Israel remains a
non - state party.
Conversely , the court could have jurisdiction over a
British or French national accused of having
committed crimes on Palestinian or Israeli territory,
as the UK and France are state parties .
While Israel is not a state party , the Palestinian
Authority has issued a declaration accepting the ICC
jurisdiction over Palestine . Palestine has a non -
member observer status at the UN and in April 2014
sought to ratify a number of international treaties
including the Geneva Conventions .
Palestine 's acceptance of ICC jurisdiction was not
accepted in 2012, as the former ICC Prosecutor ,
Moreno Ocampo , could not make a determination on
whether Palestine was a state within the meaning of
the statute .
Many countries , as well as UNESCO, have now
recognised Palestine as a state . That , in addition to
the granting of special status in the UN , may now
give the new ICC Prosecutor Fatou Bensouda the
cover she needs to open a preliminary inquiry. This
is not likely to be an easy decision and significant
pressure is likely to be exerted by the US and Israel.
In the event that this argument fails, Palestine would
need to seek a UNSC referral . This of course is far
from assured.To enable such a resolution to be
passed , the five permanent members must agree not
to veto . Considering that only two permanent
members are state parties and two others (US and
Russia ) have vested interests in supporting Israel, it
is unlikely to succeed.
Moreover, the US recently voted against a UN
Human Rights Council resolution calling for an
international investigation in Gaza , and the UK and
France abstained. It should also be recalled that
while the US recently supported a French - sponsored
resolution for the situation in Syria to be referred to
the ICC , this was on the condition that such a
referral would not include any potential
investigations into alleged crimes in the Golan
Heights.
It is therefore clear that any proposed resolution in
the UNSC is unlikely to succeed , notwithstanding the
scale of casualties on both sides .
Delivering justice
In terms of ensuring accountability, let us not forget
where the current military campaign started. The
recent incursion by Israel followed the tragic
abduction and murder of three Israeli teenagers. This
was followed by mass arrests of Palestinians which
culminated in the abduction and brutal murder of a
Palestinian teenager . Both sets of circumstances
were tragic and require justice to take its natural
course .
Should the ICC refuse to investigate , then the
international community , and in particular the US ,
will have to revaluate its policies towards Israel.
The support that US and other western countries
lends to Israel allows it to disregard accusations that
it has breached international law on many
occasions.
The fear of confronting Israel and its appalling human
rights record must stop. It must be subject to the
same high standards as the rest of the world . By the
same token , so must Palestine. If one is to criticise
Israel for its disregard for human rights protection
and accuse it of apartheid policies, the targeting of
Israeli civilians and any anti -Semitism must be
equally condemned. The same standards must apply
universally .
It is clear that both sides in the conflict have now
engaged in conduct that may constitute war crimes .
There is an overwhelming need for a system of truth ,
justice and accountability. In the event that the ICC
prosecutor is not granted the authority to investigate
the situation in Palestine , the international
community will have to come up with a
comprehensive and long- term strategy to settle the
conflict and deliver justice for the crimes committed .
Any brokered ceasefire will have little chance of
success and there will not be long- term stability
unless those responsible, on both sides of the
conflict , are brought to justice through a credible
process.
Toby Cadman is an international criminal law
specialist. He is a barrister member at Nine Bedford
Row International Chambers in London and a
member of the International Criminal Bureau in The
Hague.