ICC: Both IDF, Hamas actions on Gaza border might constitute war crimes

The ICC "will continue to closely watch the situation and will record any instance of incitement or resort to unlawful force."

By YONAH JEREMY BOB
Updated: APRIL 9, 2018 09:59
Palestinians demonstrators shout during clashes with Israeli troops at a protest demanding the right to return to their homeland, at the Israel-Gaza border east of Gaza City, April 6, 2018. (photo credit: MOHAMMED SALEM/REUTERS)
Palestinians demonstrators shout during clashes with Israeli troops at a protest demanding the right to return to their homeland, at the Israel-Gaza border east of Gaza City, April 6, 2018.
(photo credit: MOHAMMED SALEM/REUTERS)
International Criminal Court Chief Prosecutor Fatou Bensouda warned both the IDF and Hamas on Sunday that their actions on the Gaza border could potentially constitute war crimes.
Issuing the first statement relating to Israel and the Palestinians since a visit in October 2016 and the first ever during a real-time conflict, she said: “It is with grave concern that I note the violence and deteriorating situation in the Gaza Strip in the context of recent mass demonstrations.”
UN ambassadors condemn killing of Palestinian protesters by Israeli troops, April 6, 2018 (Reuters)
She noted that “at least 27 Palestinians have been reportedly killed by the Israeli Defense Forces, with over a thousand more injured, many, as a result of shootings using live ammunition and rubber-bullets.
“Violence against civilians – in a situation such as the one prevailing in Gaza – could constitute crimes under the Rome Statute of the International Criminal Court... as could the use of civilian presence for the purpose of shielding military activities.”
The Foreign Ministry declined to respond to the ICC statement.
No Gaza inquiry, Israeli Defense Minister Liberman says, April 1, 2018 (Reuters)
Bensouda’s statement comes at a critical time, with a debate in Israel about how seriously to investigate the IDF’s conduct in confronting Gazans on the border.
Defense Minister Avigdor Liberman and others have said there should be no investigation, while other indications are that while there may not be a macro-level state commission of inquiry, the IDF will still probe any specific instances of war crimes allegations.
The IDF on Sunday appointed Brig.-Gen. Moti Baruch, the head of the Doctrine and Training Division, to lead an initial probe into Palestinian deaths that have occurred since the Great March of Return was launched on March 30. Protesters in the march hope to break through the Gaza security barrier and enter Israel.
Baruch plans to use the same mechanism by which the IDF investigated incidents from Operation Protective Edge in 2014.
Israeli Defense Minister Liberman warns Gazans not to provoke violence, April 3, 2018 (Defense Ministry)
The stakes could not be higher as, according to the “complementarity principle,” the ICC prosecution cannot intervene or probe a country’s citizens for war crimes if that country has already reasonably investigated its own.

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The chief prosecutor said she was issuing the statement to “remind all parties that the situation in Palestine is under preliminary examination by my office... Any new alleged crime committed... may be subjected to my office’s scrutiny. This applies to the events of the past weeks and to any future incident.”
Moreover, she said, her office “will continue to closely watch the situation and will record any instance of incitement or resort to unlawful force. I urge all those concerned to refrain from further escalating this tragic situation.”
Bensouda concluded: “Any person who incites or engages in acts of violence, including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC’s jurisdiction, is liable to prosecution before the court, with full respect for the principle of complementarity. The resort to violence must stop.”
Despite Israeli opposition, the ICC prosecutor recognized Palestine in January 2015 and shortly thereafter accepted the PA’s request to probe contemporaneous and future events of the Israeli-Palestinian conflict.
Israel has never ratified the ICC’s Rome Statute, but the ICC prosecution says it has jurisdiction over Israel due to the IDF’s actions in Gaza and the West Bank.
Israel disputes this jurisdiction.
Since January 2015, the ICC prosecution has been preliminarily examining alleged war crimes during the 2014 Gaza war by either Israelis or Palestinians as well as in Israel’s settlement enterprise.
There is no deadline for completing the examination, and Bensouda indicated to The Jerusalem Post in an exclusive February 2016 interview that her probe could stretch for much of her tenure, which runs until 2021.
The IDF has probed over 400 incidents and criminally investigated over 30 from the 2014 Gaza war. To date, most completed investigations were closed with an admission of a mistake in intelligence or a misfire that did not constitute an intentional crime.
A recent state comptroller report supported the idea that the IDF and the political echelon properly considered international law in making decisions about the 2014 war, though the report noted several areas where the IDF could improve the veracity of its investigations.
Tovah Lazaroff contributed to this report.