The International Criminal Court (ICC) has opened an investigation into the alleged war crimes and crimes against humanity committed by the Israeli Army and by Palestinian militias. “I am convinced that war crimes have been or are being committed in the West Bank, the Gaza Strip and East Jerusalem,” ICC prosecutor Fatou Bensouda said in 2019. It is an international legal and diplomatic battle underway and of high intensity, which is being fought not only in The Hague (seat of the international high court), but also at the United Nations in New York, in the different European chancelleries and in Brussels.
Spain abstained on December 30 in voting on a resolution that asked the international court to rule on the legality of the 55-year Israeli occupation of Palestine. The Foreign Ministry has now defended that position in a written parliamentary response, to which this newspaper has had access. “Spain maintains a firm commitment to the International Court of Justice”, says the Department of José Manuel Albares, which at the same time recalls that “on January 16, Spain adhered, together with a majority of the Member States of the European Union, to the declaration proposed by Palestine in New York in which it reiterated its firm commitment to the International Court of Justice, international law and multilateralism as the axis of the international system”. In that declaration, voted in favor by Spain, they “rejected the punitive measures imposed by the Israeli government against the Palestinians and their leadership and society in response to the adoption by the General Assembly of a resolution requesting an opinion from the International Criminal Court.”
In this context, senior managers of the Ministry have received this week the Palestinian lawyer Raji Sourani (Gaza, 1953), who – with his organization Palestinian Center for Human Rights – handles hundreds of those cases of war crimes against Israeli soldiers in The Hague. In that meeting they have insisted that Spain defends its support for the two-state solution, but they have not justified why it abstained in the historic vote in December. Other big EU countries like France also abstained; Germany and the United Kingdom, as well as the United States, voted against; Belgium, Portugal or Poland, in favor. The resolution was finally approved, by 87 against 26, and 53 abstentions.
“Spain abstained from a resolution that he was only asking for a mere advisory opinion on the nature of the occupation, if it is a prolonged and belligerent occupation, on the settlement policy”, says Sourani in an interview with EL PERIÓDICO DE ESPAÑA, from the Prensa Ibérica group. Sourani is a jurist who lives in Gaza and is internationally known as a recipient of the Robert F. Kennedy Human Rights Award and the “Alternative Nobel” Right Livelihood. He is also a member of the International Commission of Jurists.
Israel and the International Criminal Court
Palestine’s fight to bring Israeli crimes to trial in the Hague tribunal has been a tortuous road. Finally, in 2021, the International Criminal Court ruled in 2021 that had jurisdiction to prosecute crimes committed in Palestinian territory (Gaza, the West Bank and East Jerusalem). He opened an investigation into possible crimes committed by the Israeli military and politicians and Palestinian militiamen in the clashes in the eternal Middle East conflict. Everything that has happened since 2015, when Palestine was accepted as a country adhering to the Treaty of Rome, which is the basis on which the International Criminal Court was founded in 2002. The Palestinians want the 2014 Gaza war to be included as well. That year, Israel shelled the fenced-off strip, killing more than 2,200 people, mostly civilians, and displacing half a million, in addition to 66 Israeli soldiers dead.
Sourani and the Palestinian Center for Human Rights have been documenting possible cases of war crimes and crimes against humanity for years to present to the ICC. They look for photographs, plans of destroyed houses, data on the missiles used, witness testimony, or the details of the chain of command to identify the accused, for example the commanders of the Israeli Army who have ordered the bombing of highly populated civilian areas. They do everything on behalf of their clients, who are the victims of the bombing or occupation, or their relatives, if they have died. They then group them under specific headings, before taking the case to the international tribunal: the 2014 offensive against Gaza itself; the blockade of gaza [cerrado por tierra, mar y aire por Israel]; the “plunder” of Palestinian resources, such as water; or the settlement policy, the thousands of illegal colonies that populate the West Bank, explains the Palestinian lawyer.
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However, advances in research are being scarce and very slow. According to Raji Sourani, the new prosecutor, the British Karim Khan, has stopped the case built by his predecessor Fatou Bensouda. “I strongly believe that Khan is neither able nor willing to advance the investigation,” says Sourani. “He has politicized the ICC, and he selects the cases. When Ukraine was invaded and occupied by Russia, he reacted perfectly, quickly… In less than two months, he has a team of 53 people, has visited Ukraine seven times, makes daily statements and interviews. About Palestine he has not said a single word.
It is complicated that no person responsible for the crimes against civilians in Israel (or Hamas) ends up sitting on the bench of the accused in The Hague. Of the 26 arrest warrants issued by the ICC in these two decades, the bulk are for cases related to Africa or the former Yugoslavia. However, the collateral impact of an investigation or conviction is very high: puts defendants at risk of arrest if they travel abroad. In addition, it is an international moral rebuke that Israel tries to avoid at all costs.