Is universal jurisdiction the way forward to end Israel’s impunity?
Francisco Rey Marcos
With more and more reports of crimes committed by the Israeli army during the recent occupation of Gaza, it is important to take a step back and study the various legal options available to prevent actions of this kind going unpunished once again.
The military operations in the Gaza Strip and the clear evidence of violations of International Humanitarian Law, and consequently, of war crimes, have sparked a debate about international legal responsibilities and the possibility of instituting legal proceedings. Success is far from guaranteed, but we should not forget that the road to universal criminal justice is long and tortuous (Pinochet and Milosevic never imagined that they could be tried for their crimes) and that these initiatives are very recent.
First of all, there is abundant proof of war crimes. This means there is a legal basis on which proceedings can be instituted. Deliberate targeting of civilians, of UN buildings, of ambulances, members of the Red Crescent and other NGOs and the use of weapons such as white phosphorous shells, to mention only the most obvious examples, are all serious violations of the Geneva conventions, and should, at the very least, be investigated. But this said…who should instigate these proceedings. What body is qualified to deal with this issue? Who would be willing to take on this task? A few weeks ago, Richard Falk, UN special rapporteur on human rights in the Palestinian territories declared that the proof of violations of International Humanitarian Law was so overwhelming that they should be the object of an independent investigation. Falk, who can not be accused of anti-semitism because he is Jewish, has also asked the international community to instigate sanctions immediately. Even the UN Secretary General, Ban Ki-moon has asked that Israel should appear before the legal authorities…without specifying which authorities. But at least things seem to be moving in the right direction.
Procurator Moreno Ocampo has stated that the ICC is not qualified to deal with this question as Israel is not a State Party to the Rome Statute and no procedure has yet been launched to involve the ICC (the UN Security Council could ask the procurator to take up the case). However, alternatives do exist. The first of these, a rather original and audacious idea, would be to investigate Israeli soldiers with dual nationality, where the other nation is a signatory of the ICC, which would mean that the soldiers were under the court’s jurisdiction. Even though this may appear complicated and there are no precedents, it would provide human rights organisations with a new way of raising awareness about events in Gaza. It would be a way of applying pressure to make sure criminal acts were investigated.