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What does the ICC investigation mean for Israel?

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Israel

The recent decision by the International Criminal Court (ICC) to allow an investigation into possible war crimes committed by Israel isn’t a surprise. But that doesn’t lessen its significance.

Last Friday, 5 February, the court’s pre-trial chamber ruled 2-1 that it had jurisdiction to open a criminal investigation into the 2014 Israel-Hamas conflict (Operation Protective Edge), Israeli settlement policy, and the Israeli response to protests at the Gaza border. There remains the possibility that other incidents could also be probed in future.

For many Israelis, this is yet further proof of the double standards under which they believe the court operates. The ICC has honed in on Jerusalem while ignoring human rights abusers in Iran, Syria, and China.

Palestinians have welcomed the move. Although the ICC will examine actions by both Israelis and Palestinians, including Hamas, the probe was launched at the request of the Palestinian Authority (PA), and is expected to focus overwhelmingly on Israeli actions.

The ICC doesn’t try countries, but rather individuals. This means that war crimes suits could be levelled against Prime Minister Benjamin Netanyahu and former Defence Minister Moshe Ya’alon, who held that post during the 2014 Gaza War.

Avigdor Lieberman, who was defence minister when the Great March began, could also be targeted, as could Defence Minister Benny Gantz and his predecessor, Naftali Bennett. This is in addition to individual Israeli soldiers and commanders.

Already in 2009, an arrest warrant was issued for Tzipi Livni on the grounds that she had been a member of the Israeli war cabinet that sanctioned the assault on Gaza, in which more than a thousand Palestinians were killed. In the end, Livni cancelled a trip to the United Kingdom (UK) and the threat of arrest kept her out of the country until authorities in 2011 granted automatic immunity to all Israeli officials visiting the UK.

But should Israeli (and/or Hamas) officials ultimately be convicted of war crimes by the ICC and senior officials named in such a verdict, they could be subject to international arrest warrants upon travel abroad.

However, for now at least, Jerusalem says it doesn’t anticipate any immediate threats to senior Israeli political or military figures. But that could change.

The court’s announcement also has implications at a state level. A negative ruling on Israeli actions in Gaza would ultimately raise questions about Jerusalem’s right to self-defence, and make it difficult for the Israeli army to operate against threats on the country’s southern border.

If the court also rules against settlements and Jewish building in east Jerusalem, this would undercut the country’s legal claims to historical and religious rights. Any Israeli activity in the West Bank would amount to a war crime.

Jerusalem has long argued that the ICC has no jurisdiction, and that Palestine isn’t a sovereign state. Although it was given the option to submit its position on the matter to the ICC, it declined. As such, Israel cannot appeal this ruling even if it wanted to.

Already back in 2016, Netanyahu appointed Avichai Mandelblit as attorney general because he believed he was the best person to defend Israel against future actions from the ICC. (Ironically today, the two are at loggerheads over Netanyahu’s corruption trial).

Responding to the ICC statement, Mandelblit said, “The principled legal position of the state of Israel, which is not a party to the ICC, is that the court lacks jurisdiction in relation to Israel and that any Palestinian actions with respect to the court are legally invalid.”

He noted that only sovereign states could delegate criminal jurisdiction to the court, claiming that the PA didn’t meet the criteria. He also argued that Israel had “valid legal claims” over the territory in question, and that the sides had agreed in the past “to resolve their dispute over the future status of this territory in the framework of negotiations”.

The ICC is meant to serve as a court of last resort when countries’ own judicial systems are unable or unwilling to investigate and prosecute war crimes. Until now, all attempts to prosecute Israel in the ICC have failed, not least because its courts are seen as independent and able to investigate any allegations of crimes in the territories on their own.

Israel’s military also has its own internal systems to probe alleged wrongdoing by its troops and in spite of criticism that the system is insufficient, experts say it has a good chance of fending off ICC investigations into its wartime practices.

But when it comes to settlement activity, which Israel considers to be legal, Jerusalem hasn’t held criminal investigations. Some experts say the country could have a difficult time contesting international law that forbids the transfer of a civilian population into occupied territory.

In practical terms, ICC Chief Prosecutor Fatou Bensouda hasn’t yet decided to launch her investigation into possible Israeli war crimes. She has only requested, and now received, authority from the court to do so. Her term as prosecutor is set to expire in June, and some Israeli officials are hopeful that her as of yet unelected successor could take a different path.

Still, meetings will be held in coming days to discuss strategy moving forward, including the possibility of a shift away from the current path of refusing to co-operate with the ICC.

Israel’s judicial establishment has been preparing for possible scenarios of ICC action for the past decade, and now fears that the country could be headed down a path that will lead to eventual ICC rulings against its politicians and military officials.

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What really happened in Israel this week

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It’s just gone 03:00 in the morning on Wednesday, 12 May. I’m hunkering down in a bomb shelter which doubles up as my study in Tel Aviv. I’ve checked a few times that the iron door and window are tightly shut. I can hear the sirens screeching overhead, followed by a pause, and then a massive explosion.

Just a few hours ago, I was outside on the streets, which are eerily quiet for this busy city.

An earlier night-time drive into neighbouring Holon was even more unusual. A main thoroughfare was cordoned off by police and firemen who were shouting into their cell phones and at each other. Half an hour earlier, a rocket had hit an empty bus and debris was lying everywhere. The glass windows of nearby shops had been completely shattered, and residents were coming to assess the damage. Four people are being treated in hospital, one of them a five-year-old girl.

It’s been chaotic since last Friday night, when clashes erupted outside the Al Aqsa mosque compound in Jerusalem. For five consecutive nights, the pattern has been pretty much the same. Muslim worshippers make their way into the Old City through Damascus Gate while outside, Israeli police and the army take up position. There’s even a section where the journalists stand. After the prayers, a group of youngsters inevitably start hurling water bottles, rocks, and glass at the officers who after a while, respond by charging into the crowd, arresting some of the protestors, and firing stun grenades. It’s predictable.

Hamas, the rulers in Gaza, are egging on the protestors. The announcement by Palestinian President Mahmoud Abbas that he was postponing Palestinian elections – the first in 15 years – indefinitely, and blaming Israel for it, didn’t help. Neither did the fact that this is happening during the Muslim holy month of Ramadan, a heightened time of religious sensitivity. It also comes after the Supreme Court was meant, on Monday, to give a ruling on the evictions of about 70 Palestinians from houses in the contested East Jerusalem neighbourhood of Sheikh Jarrah that Jews say they owned before 1967. The court has delayed the announcement of its decision.

But still, the result is the worst violence in four years, and it has quickly spread to other Israeli Arab localities. The city of Lod just outside Tel Aviv is in lockdown. The Israeli army imposed a state of emergency after troops had to evacuate some Jewish residents amid clashes between Arabs and police and after buildings, including a synagogue, were set alight.

At the time of writing, five Israeli civilians and one soldier have been killed. The latter happened after Hamas fired an antitank missile at an Israeli jeep on Wednesday morning. One of the Israeli civilians killed was a pensioner who was too old to get to a shelter and who died alongside her Indian helper in their home.

Hamas has criticised Israel for trying to change the status quo in Jerusalem, but Israeli soldiers insist they are reacting only after coming under fire. They accuse Palestinian youngsters of shoring up stones, rocks, and homemade ammunition inside the Al Aqsa compound and attacking them with it.

But the international community is clearly more on the side of the Palestinians. Amnesty International has accused Israel of excessive force that I, as a journalist covering the protests, dispute. There are certainly some instances of the Israeli security forces manhandling and violently attacking protestors but on the whole, certainly outside Damascus Gate where I’ve been most of the week, it’s dangerous for the troops as they are provoked and hit with things that could seriously injure them if they weren’t wearing helmets.

Israeli Prime Minister Benjamin Netanyahu announced that he wouldn’t give in to rogue elements trying to disrupt Jerusalem, and in his latest speech has threatened that Hamas will pay a “dear price”.

I’m on the phone constantly with my colleagues in Gaza. One lives in the Hanadi Tower, a 13-storey residential building in Gaza city, that collapsed on Tuesday after Israeli air strikes targeted an office used by the political leadership of Hamas. An hour before the strike, residents were warned to leave their homes by the Israeli Defense Forces and hence there were no reports of injuries. But my colleague is now homeless.

I also have an Israeli friend who phoned me in tears. Her son is among the thousands of soldiers who have been called up to the Gaza border. It’s not yet clear if Israel plans a ground offensive but all options are on the table. Five thousand additional reserve troops have also been making their way to beef up the army in the southern Israeli communities and help those maintaining calm in Israeli cities across the country – Haifa, Ramle, Akko, Beer Sheva, and others.

While between 80% to 90% of rockets fired from Gaza – and to date there have been more than 1 200 in total – have been shot down by Israel’s anti-missile defence system, the Iron Dome, many Israeli civilians are choosing to move to the north out of harm’s way – hopefully.

Several of those I interviewed blame American President Joe Biden for the flare-up. After he took office in January, Biden expressed little interest in pursuing an Israeli-Palestinian peace agreement. He’s also been reluctant to get involved in the current conflict, but is being urged to do so. The clashes have caught his administration on the back foot. By comparison, the Trump administration showed unstinting support for Netanyahu and hostility towards the Palestinians.

“If Trump was in office now,” many Israelis tell me, “the Palestinians would be too scared to act like they are now. But they know Biden won’t do anything!”

Come tonight – and probably for the rest of the week – I’ll be sleeping in my bomb shelter, as will hundreds of thousands of Israelis. Gazans, too, will be hunkering down where they can find shelter. No-one wants another war; but then again no-one’s being asked.

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SA olim hunker down under a rain of rockets

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As rockets rained down on most of Israel from Monday to Wednesday this week, many South African olim hunkered down in safe rooms, bomb shelters, and stairwells. Meanwhile, one healthcare worker was on the frontlines of her hospital, treating the injured in what she called a “miniature mass-casualty event”.

Gila Nussbaum is an emergency physician in a hospital in the south of Israel. “I’m trained to remain calm and work under pressure, but yesterday, that pressure escalated when my own life and those of my colleagues and patients was in danger,” she told the SA Jewish Report on Wednesday, 12 May.

“We have had drills, but no amount of simulation can match reality. Yesterday, when the sirens sounded, we were ready to seal the emergency room, stay in the internal corridors, and continue doing what we always do under slightly different circumstances. Then we got notification that rockets had landed in a residential area, people were injured, and they were on their way.

“We activated a mini mass-casualty event. This means we clear an area of the department of usual patients and family members. It also means rushing admissions, moving people to safe areas, and pushing extra beds into corridors and passages. We bring in extra equipment, we activate staff on standby, and we stand at the ready.

“Then they started to come: an elderly man in a wheelchair, a child who was with a babysitter, a mentally disabled lady who didn’t understand what was happening – people injured, scared, and anxious. We treated each one and reunited family members who had been separated. We continued treating patients who came in with strokes, heart attacks, and pneumonia – the usual things don’t stop just because rockets are falling. And so we kept going – doctors, nurses, nursing assistants, radiographers, cleaners, security services – all the personnel required to keep an emergency department running. Through it all, Israelis, Arabs, South Africans, Americans, Brazilians, and Brits worked as a team.

“Thank G-d, most weren’t too severely injured and were able to be discharged, but then we suddenly faced a new dilemma: our usual note of “discharged home with the following instructions” was no longer applicable as the majority of these patients no longer had a home to go to. Their homes were now a pile of rubble. And so we faced the new challenge of finding placement for them.”

Eventually Nussbaum’s gruelling 14-hour shift ended. After arriving home, sirens sounded and “my long day was extended by dragging my three small children out of bed and into our mamad [safe room].” On the next evening [Wednesday], she says: “It was a scary drive. I had to stop three times because of rockets, get out the car and lie down on the side of the road.”

“When a rocket falls nearby, you really hear it and feel it. It’s so, so scary,” says grandmother Jolleen Hayon, who lives in Ashkelon and works for the Baltimore-Ashkelon partnership, connecting Jews from both cities. “I’m 14km away from Gaza. A rocket landed on a car, 30m from my house. The car was parked a few metres away from a home for children at risk. If the rocket had exploded there, it would have been a real disaster. We can hear the Israeli army planes and jets going past, and we hear the bombing in Gaza. All of these sounds are the sounds of war … it’s a horrible noise.”

Like many Israelis, Hayon wishes that things hadn’t escalated to this level, and that both sides could make peace. “I’ve been here for 10 years, but one never really gets used to it. The constant tension of needing to get to the safe room in 28 seconds is tough. And for ages after things quieten down, every time you hear a motorbike revving or a car backfiring, or someone drops something, you just about jump out of your skin. It’s really something that goes deep.”

As she and her husband sheltered in their safe room in 30-degree heat on Tuesday, a rocket hit the power lines and so they had no electricity the whole day. “It was pitch dark and boiling. We slammed the door, locked it, and listened to the booms of the rockets falling.

“The situation in mixed cities is so scary,” she says, referring to civil unrest in cities with Jewish and Arab populations, like Lod. “To think of people’s neighbours marching through streets, lynching people, setting cars and shuls alight, throwing rocks … is very worrying.”

Eighteen-year-old Lexi Price is spending her gap year at Machon Maayan, about a 10-minute drive from Ashdod. “We’ve been hearing a lot of rocket fire. This morning [Tuesday] was the first time that I’ve ever had to go into a bomb shelter. I was stressed out as I wasn’t prepared for it at all. Tonight [Tuesday night] we’re sleeping in the bomb shelter. The madrichot were trying to calm everyone down. The siren went off, and the girls started panicking. I asked the ‘house mom’ if we could tisch [sing religious songs], so we were singing while we could hear rocket fire and the Iron Dome intercepting it. It was so powerful to be singing while that was happening.”

On Tuesday night, media consultant Darryl Egnal was at a party for international students at Bar-Ilan University’s International School in Ramat Gan. “Twenty minutes after I arrived, sirens could be heard over the music, which was shut down immediately, and we were all ushered down two flights of stairs into the basement bomb shelter which doubles as one of the university’s libraries.”

Egnal made aliyah in 2009, and says that “in the past, there would be one or two sirens with simultaneous explosions being heard as the Iron Dome intercepts the rockets. You’d wait 10 minutes to make sure it was safe, and then go back to whatever you were doing. This time, however, there was siren after siren and explosion after explosion. It didn’t seem to end.

“Food and drink was brought down, and eventually, the music was too, so the students continued the party in the shelter. Being international students, this was the first time most of them had experienced a rocket attack on Israel. Some were afraid, some took it in their stride.”

Later, she was woken by a siren at 03:00. “Planning to go down to the basement shelter, I opened my front door to see many of my neighbours in the passageway and the stairwell, something I wasn’t expecting. Apparently, if you live on the upper floors of a building and can’t get to the bomb shelter, the safest place to go is the second floor, which is where I live. So I grabbed one of my chairs and joined them. Adults, teenagers, toddlers, babies … and a dog. We sat there for about 30 minutes while the sirens wailed and rockets exploded.”

Social worker Leanne Manshari has lived in Ashkelon for 12 years. Her son’s birthday fell on Yom Yerushalayim, and his friends had just arrived for a surprise birthday sleepover when the sirens started going off. “The mothers decided the kids could stay, and so they had a sleepover in the safe room. It was an experience we will never forget!”

Manshari is a social worker for a girls’ boarding school. “In the middle of the night, I had to go to the school, which is a half-hour drive from Ashkelon. The girls were traumatised because when they were driving back from Yom Yerushalayim, rocks were thrown at their buses. Driving through Ashkelon under rocket fire was extremely frightening even though I’m not an anxious person.”

She says her eight-year-old daughter is extremely anxious about the rockets. “We were bombarded every ten minutes. At one point they told us not to leave the mamad for a few hours because one of the Iron Domes wasn’t working.”

The family has since left to stay with Manshari’s sister-in-law, near Haifa. “I am happy to be here and to see my sister-in-law, but I also want to go home. It’s surreal. You really want to be in your own house but you can’t go home, it’s just not safe.”

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Skies between SA and Israel could open soon, says Israel’s COVID-19 chief

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South African Jews and their relatives in Israel are battling yet another travel ban implemented by Israel at the beginning of May, which forbids travel to South Africa and seven other countries. Yet Tomer Lotan, the executive director and policy chief at the Government of Israel National Coronavirus TaskForce, told the SA Jewish Report it might shift soon.

“I think it will change pretty soon. The policy is based on the idea of opening as much as we can inside Israel, but being very strict with our borders. We call it the ‘inverse watermelon’ – the inside is green and the outside is red. It sounds much better in Hebrew!

“We went through two to three months of relief in daily activity and opening our economy,” he says. “This was mainly through the ‘green pass’, a project that I was privileged to lead [allowing those who are vaccinated access to daily life, sport, and cultural events]. There were about six to seven phases of relief to get our economic activity as close as we could to daily routine.

“But the other side of the equation has been to keep our borders as strict as possible. It’s a challenging balance. We’ve been more conservative about our borders than before because we want to maintain the achievements of our vaccination project. We don’t want to risk it with a ‘variant scenario’ [a COVID-19 variant entering the country.]”

He says an Israeli High Court decision two months ago ruled that “we cannot block Israeli citizens from travelling back to Israel. This means we had only one option left: to have a differentiated approach to different countries. This is why we created these criteria, focused on countries that are more dangerous for Israel because of the presence of variants of concern. We also looked at the traffic between these countries and Israel.”

In the case of South Africa he says, “the South African COVID-19 variant is still a concern according to our Ministry of Health. However, I must say, over the past week or two, we have seen more evidence that the South African variant may be less dangerous than we originally thought. So I’m more optimistic that in the short term, Israel will update its knowledge on the South African variant. We hope that the evidence will give us confidence that it won’t affect those who are vaccinated, and then the policy [on travel between South Africa and Israel] might change. But we’ve been very conservative because no one wants to make the mistake of ‘reading the map’ incorrectly.”

Lotan says South Africa’s recent low COVID-19 numbers don’t have a big impact on Israel’s assessment of its travel ban. Rather, the traffic between the two countries and strong family ties between people has more of an impact.

“But we want to emphasise that the health ministry and Israeli government are very aware of the need to reconnect communities and families. We hope to make sure that over the coming weeks and into the summer, there is more traffic between South Africa, Israel, and other countries, not only for the Israeli economy, but also because of the very important ties to these Jewish communities. We are making an effort and it’s ‘on our table’. We are putting a lot of effort into updating policies.”

So is Israel’s fight with the pandemic coming to an end? “Most Israelis feel that ‘corona is over’. They act like it’s over, and there is much sense in that as we are really close to normal routine,” he says. “And our numbers are dramatically, fantastically low. The only question mark is the fact that the world is still suffering terribly from COVID-19. So it’s still premature to say that it’s over.”

He says the Israeli government will soon “pilot groups of tourists to start tourism again in Israel. That’s the next step. We’ve done things gradually, in a cautious way. We aren’t running forward [without thinking things through].”

Regarding sectors of Israeli society that may have been resistant to vaccines, Lotan says “the Haredim [ultra-Orthodox] do vaccinate. They are at least 60% vaccinated, which is high compared to the rest of the world.” He points out that they haven’t experienced an increase in COVID-19 numbers after the large gathering at Mount Meron for Lag B’Omer.

“Arab Israeli citizens also have very high vaccination numbers. It took a while to increase numbers – it started slowly, but after we adjusted our messaging and created greater accessibility in Arab villages, there has been increased compliance.” These efforts have extended from East Jerusalem to Bedouin families in the Negev. Lotan says Israel has also vaccinated 200 000 Palestinian workers that come in and out of Israel. Although it’s in Israel’s interest that all Palestinians are vaccinated, this responsibility falls to the Palestinian Authority.

Regarding the large numbers gathered at Mount Meron, Lotan says, “for so many years, the event has been unmanaged. It’s like a ‘no man’s land’. We concluded COVID-19 restrictions for Meron based on the green pass –allowing only those who are vaccinated to attend, restricting numbers, and so on. The plan was agreed with the relevant ministries and the police.

“But then it was disputed at operational level. Who would enforce it? Who would check the green passes? And then the formal restrictions weren’t voted in by the government. It was a very good plan, but no one signed it. So the event was unmanaged.”

He says this failure is a symbol of “the failures of the Israeli system. It’s not just political, it’s about the weakness of authorities. So the miracle [of Lag B’Omer] didn’t happen this year.”

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