The Israeli Military Attack on the Gaza Strip in 2022 In Light of the International Criminal Court's Jurisdiction over Palestine رسالة ماجستير

Abstract

Since 2007, Israel, the occupying power, has imposed an air, land, and sea blockade on the Gaza Strip, in clear violation of international human rights law, especially the International Covenants on freedom of movement, housing, education, and health. This blockade has had severe consequences for the civilian population in Gaza, leading to significant suffering. The arbitrary Israeli siege has prevented civilians from seeking safety outside Gaza during military attacks, resulting in forced displacement and internal displacement even after hostilities ended. The ongoing harshness of the blockade, coupled with periodic Israeli military assaults ordered by senior Israeli government officials and military leaders, has severely damaged Gaza’s infrastructure and eroded the livelihoods of Palestinians. Despite substantial evidence of Israel's systematic and widespread targeting of civilians in Gaza, particularly during the recent military assault on August 5, 2022, as well as previous assaults in 2008-2009, 2012, 2014, 2018, 2019, and 2021, which resulted in numerous civilian deaths and injuries, including hundreds of children, women, and the elderly, and the widespread destruction of civilian properties, no Israeli civil or military leaders responsible for these violations have been held accountable. These actions constitute war crimes under the Rome Statute of the International Criminal Court (ICC). However, there has been no movement toward holding these individuals accountable, and the international community has failed to ensure justice for the Palestinian people. While global efforts are made to establish international tribunals to prosecute war criminals, Israeli leaders continue to enjoy diplomatic immunity and freedom of movement worldwide. VI This study explores the legal mechanisms used to classify war criminals and the tools required to bring Israeli war criminals to justice. It also highlights the challenges in holding Israeli war criminals accountable. Israel’s disregard for international law, evidenced by its repeated military attacks on Gaza, including the most recent one in 2022, underscores the double standards in international responses to the Palestinian issue. Israel, as the occupying power, continues to violate international humanitarian law without facing any obligations to protect Palestinian civilians, as mandated by international agreements, particularly the Geneva Conventions and their protocols. The study delves into Israel’s aggressive practices against the Palestinian people, legally classifying them as war crimes, and explores the most effective means to bring Israeli war criminals to international justice through the ICC. It also emphasizes the need to raise awareness about Israeli war crimes, the legality of its military operations in Gaza, and to assess the justification of military necessity and the proportionality of force used. Additionally, it reviews the principles of international criminal accountability for war crimes and explores the application of these rules to the practices carried out in the occupied Palestinian territories, particularly violations of international laws, including the Rome Statute. The researcher primarily employed the descriptive and analytical research methodology, which aligns with the practical and theoretical aspects of the study. This approach was used to describe the impact of Israeli assaults and their compatibility with international and humanitarian laws. The study analyzed key concepts, such as the principles of distinction and proportionality under international law, the Geneva Conventions, and the VII Rome Statute, to develop logical interpretations and evidence that define the problem and classify it as war crimes, emphasizing the importance of bringing the perpetrators to justice. Conclusion The researcher has reached several conclusions and recommendations that are hoped to be considered and implemented in the near future: 1. The International Criminal Court (ICC) has jurisdiction over the Palestinian territories, whether they are occupied or not, regardless of whether Israel is a party to the Rome Statute. 2. The Pre-Trial Chamber's decision regarding jurisdiction in the situation of Palestine is not an advisory opinion but rather a significant judicial decision on jurisdiction, which lays a strong legal foundation for proceeding with trial proceedings. 3. The ICC has jurisdiction over all crimes committed on Palestinian territories, considering that Palestine became a state party to the Rome Statute upon the entry into legal force of the statute regarding its territory. 4. There is a diversity of opinions regarding the dissenting judge's views in the Pre-Trial Chamber decision on the jurisdiction of the Court in the situation of Palestine, especially concerning the elements of statehood in Palestine, its borders, and a violation of established principles of international law. 5. At present, the Palestinian national judiciary is incapable of pursuing Israeli officials for the crimes committed, particularly in the context of the 2022 Israeli attack on Gaza. 6. Israel has not undertaken serious investigations in accordance with the principle of complementarity, even though it has the capacity to do so. Instead, it avoids opening VIII transparent and comprehensive investigations into the crimes committed by its soldiers and military leaders against the Palestinian people, negating the principle of complementarity and thereby triggering the ICC's jurisdiction. 7. Israel, as the occupying power, does not adhere to the rules of international humanitarian law and human rights law. It does not limit its use of military force, violating principles of proportionality, discrimination, prevention, investigation, and ensuring that civilian protesters are not killed with its military weapons. 8. Israel, the occupying power, has unequivocally committed the crime of genocide in its war on the Gaza Strip in 2023, leaving no room for doubt. 9. The loss of confidence and abandonment by the Palestinian people and supporting nations in the power of international law and its enforceability in the face of political pressures exerted by former colonial powers, especially in the 2023 war. 10. The ICC faces numerous legal and political challenges that hinder its role in applying international criminal justice. Political pressure is the most significant challenge, followed by legal loopholes. Recommendations: 1. It is essential to utilize the Pre-Trial Chamber's decision regarding the ICC's jurisdiction over Palestinian territories as a strong legal basis that can be used if a two state solution is implemented. 2. Arab and friendly countries must use all available means of pressure to prevent obstruction of ICC investigations. If a verdict of guilt is issued against any official, it will have significant legal and political implications. IX 3. Immediately collaborate with UN member states to reform the structure of the Security Council and its permanent five-member composition, ensuring that the legal dimension takes precedence over political considerations. 4. The Rome Statute should be amended to address clear legal loopholes, particularly limiting the Security Council's powers to indefinitely defer investigations and prosecutions. 5. It is imperative to unify the current division within the Palestinian Authority, as it would carry numerous political and legal benefits, including the full assertion of judicial authority over Palestinian territories and the possibility of prosecuting Israelis in Palestinian courts. 6. Forming an independent international committee to investigate the scale of explosives and internationally prohibited weapons used by Israel against civilians in the Gaza Strip. Holding those responsible accountable, including those who issued orders, devised plans, and executed them. Taking necessary actions to achieve justice for the Palestinian victims. 7. The ICC should be continuously used for all crimes committed since the entry into force of the Rome Statute, especially those related to the 2022,2023 Israeli attack. This will exert pressure on the international community to hold Israeli leaders accountable for all crimes against the Palestinian people