By Mary Robinson, published in The Financial Times on 15 March 2021.
ICC decision to investigate Hamas and Israel has implications for both sides.
BP Trustee, author and international lawyer John McHugo writes: For far too long, political leaders have shied away from calling on Israel and the Palestinians to take international law as the starting point for their relations with each other, and in negotiating peace. This state of affairs must end.
This article provides an excellent backdrop to the Balfour Project’s forthcoming online conference – “Israel / Palestine – In Search of the Rule of Law” – May 25 & 26. See https://balfourproject.org/rule-of-law/
The Balfour Project therefore welcomes Mary Robinson’s timely opinion piece in The Financial Times on 15 March 2021 which she begins by stating that “international law is the bedrock on which the rules-based multilateral system rests”, and that “full adherence to its precepts by all UN member states is essential in efforts to resolve many intractable conflicts, including that between Israel and the Palestinians”.
We also join her in welcoming the decision by the International Criminal Court to open investigations into war crimes committed by individuals on the Palestinian Territory occupied by Israel since 1967. She rightly draws attention to crimes on each side, including rocket and terror attacks on Israeli civilian targets from Gaza and the central issue of Israel’s settling of its citizens in the occupied territories. She describes this as a grave breach of the Fourth Geneva Convention and a war crime. The law should be applied without fear or favour, and justice must not only be done but must be seen to be done.
The Balfour Project calls on the British Government to do whatever it can to facilitate the ICC’s investigation, and to endorse her call for international law to be seen as the starting point in the search for peace.
International law is the bedrock on which the rules-based multilateral system rests. Full adherence to its precepts by all UN member states is essential in efforts to resolve many intractable conflicts, including that between Israel and the Palestinians.
In this regard, the International Criminal Court’s decision to open an investigation into the situation in Palestine is significant. It follows an earlier ICC ruling that the court has jurisdiction over the Palestinian territories Israel has occupied since 1967.
International humanitarian and human rights law is today threatened from many directions and undermined by a growing culture of impunity, from Syria and Yemen to South Sudan and the Sahel. For this to end, credible mechanisms of accountability are crucial.
That is why the ICC ruling, which paves the way for investigations into alleged war crimes committed by individuals in the Palestinian occupied territories, could prove to be so consequential. Under the Trump administration, respect for international law was superseded by unilateral and partisan policy shifts, including US alignment with Israel in its argument that the legal status of the occupied Palestinian territories is merely “disputed”.
That shift gave cover to the continuing construction of Israeli settlements in the West Bank and East Jerusalem — the biggest threat to the two-state solution and a flagrant violation of international law. It also helped justify the extension of Israeli domestic law to the 650,000 Jews living in the occupied Palestinian territories.
This de facto establishment of a dual legal regime based on religion and ethnicity has led some Israeli and international lawyers and human rights groups to assert that the situation is akin to apartheid. The ICC ruling and the change of US administration now afford an opportunity to reassert the primacy of international law.
The ruling has implications for both parties. The settlement of the occupying power’s citizens in the occupied territories is deemed to be a “grave breach” of the Geneva Conventions and a war crime, but so too is the indiscriminate firing of missiles at civilians, as often perpetrated by Hamas and other militants in the Gaza Strip.
But whereas the Palestinian Authority and Hamas have welcomed the ICC rulings, Israel has refused to co-operate and the US strongly opposes the decision. US sanctions on ICC prosecutors imposed by the Trump administration also remain in place.
The international community has a responsibility to step up and endorse the court’s rulings ahead of upcoming Israeli and Palestinian elections. While Israel is facing its fourth election in two years, it is the first time for 15 years that Palestinian voters will go to the polls. In 2006, the victory of Hamas saw the results rejected by its Palestinian rival Fatah, Israel and many other states.
Respect for election results after a free and fair campaign and respect for the rule of law are two sides of the same coin. States that champion democracy as an integral part of their foreign policies should be consistent in their application. The EU should use its economic leverage and urge Israel to permit voting to take place in those parts of East Jerusalem that lie beyond the pre-1967 Green Line.
The Israeli-Palestinian conflict is as old as the UN itself. The international community’s efforts must focus first on ensuring an end to the occupation. I have seen directly the misery and injustice inflicted by the occupation on ordinary Palestinians, as well as the tragic impact of rocket and terror attacks on Israeli civilians.
Both peoples deserve to live in peace and justice. The ICC ruling and forthcoming elections offer steps towards this goal, if leaders on each side have the courage to seize the moment.
Copyright The Financial Times Limited 2021. All rights reserved.
The author is a former UN High Commissioner for Human Rights and chair of The Elders.