Israeli court rules in favor of sweeping impunity

Palestinians carry an injured protester during a Great March of Return protest along the Gaza-Israel boundary in October 2019 (Mohammed Zaanoun - ActiveStills)

Maureen Clare Murphy

The Electronic Intifada  /  July 11, 2022

Israel’s high court ruled last week in favor of sweeping immunity for the state for war crimes perpetrated in Gaza.

Palestinian human rights groups say that the ruling underscores the urgent need for an immediate International Criminal Court investigation.

Adalah, a Palestinian human rights group, stated that the “ruling means that all Gaza residents are banned from any redress and remedy in Israel, regardless of the circumstances, during ‘acts of war’ or otherwise.”

The high court ruling is in response to an appeal demanding that Israel pay compensation for the serious injury of Attiya Nabaheen, who had just turned 15 when he was shot by Israeli forces in his family’s front yard while returning home from school in Gaza in November 2014.

Nabaheen was paralyzed as a result of his injuries.

Adalah and Al-Mezan, another human rights group, had appealed to the court to challenge a law enacted in 2012 stipulating that residents of the Gaza Strip are ineligible for compensation from Israel because it was declared “enemy territory” in 2007.

A lower court used that law to throw out Nabaheen’s effort to receive compensation from Israel for his injuries.

The high court stated that the law is consistent with international law and that in any case, Israel’s parliament “has the power to override the rules of international law.”

Adalah and Al-Mezan stated in response that the high court ruling “justifies the immediate initiation of an [International Criminal Court] investigation, as it deprives Palestinian civilian victims of war crimes committed by Israel of any legal remedy.”

The groups add that “there is no clearer evidence of the fact that the Israeli legal system is committed to the legitimization of war crimes and to assisting the military in its efforts by denying all legal remedies to victims.”

An independent UN probe into Israel’s use of lethal force against Great March of Return protesters in 2018 examined Nabaheen’s case and its implications for other Gaza residents.

The ruling denies “the main avenue to fulfill their right to ‘effective legal remedy’ from Israel that is guaranteed to them under international law,” the UN investigators stated. “The importance of this ruling is thus difficult to overstate.”

In an attempt to justify the use of lethal force against unarmed protesters, Israel invented a baseless new paradigm of international law that categorized the Great March of Return as part of its armed conflict with Hamas, the Palestinian resistance and political organization that oversees Gaza’s internal affairs.

The Israeli military’s directives stipulate that a criminal investigation must be opened immediately following the death of a Palestinian outside combat activity.

By categorizing the Great March of Return as part of its armed conflict with Hamas, even though demonstrators were unarmed, Israel created a separate legal framework for handling complaints related to the protests.

Legal loophole

This major legal loophole is also being applied regarding Palestinians killed by Israeli occupation forces in the West Bank.

Israel’s military advocate general stated that the killing of Al Jazeera correspondent Shireen Abu Akleh while she was covering an army raid in Jenin during May was a “combat event” and therefore no soldier is likely to face criminal charges.

Israel has all but admitted that one of its soldiers killed Abu Akleh and last week the US State Department announced that the journalist was “likely” killed by gunfire from Israeli troops.

Both Israel and the US are appearing to treat Abu Akleh’s killing as an operational error rather than a suspected extrajudicial execution.

Several independent investigations by human rights groups and international media outlets have also concluded that Abu Akleh was most likely killed by Israeli fire.

CNN’s forensic investigation, citing explosive weapons expert Chris Cobb-Smith, notes that “Abu Akleh was killed in discrete shots.”

Cobb-Smith said that “the number of strike marks on the tree where [Abu Akleh] was standing proves this wasn’t a random shot, she was targeted.”

Last Friday, Abu Akleh’s family issued a letter to US President Joe Biden, who is scheduled to visit Israel and the West Bank next week, and accused his administration of “skulking toward the erasure of any wrongdoing by Israeli forces.”

The US does not appear to be pressing Israel for a criminal investigation, with State Department spokesperson Ned Price saying during a press briefing last Tuesday that “we are not trying to be prescriptive about this.”

For the Biden administration, it seems, accountability means encouraging “steps to safeguard civilians and non-combatants in a combat zone.”

Price added that the Israeli military “is in a position to consider steps to see to it that something like this can’t happen again.”

The Abu Akleh family said on Friday that “we are incredulous that such an expectation would be the pinnacle of your administration’s response.”

The family pointed to unconditional US military aid to Israel and “near absolute diplomatic support to shield Israeli officials from accountability.”

The Abu Akleh family called on Biden to meet with them during his upcoming visit and provide the information gathered by his administration regarding the journalist’s killing.

The family told the president of its “grief, outrage and sense of betrayal” at his determined efforts to ensure “the erasure of any wrongdoing by Israeli forces.”

“We expect the Biden administration [to] support our efforts to push for accountability and justice … wherever they take us,” the family stated.

International Criminal Court

One such venue is the International Criminal Court, which has been approached about the killing of Abu Akleh by both the Palestinian Authority and Al Jazeera. The US has partnered with Israel in trying to undermine The Hague’s investigation in Palestine.

The ICC privileges a country’s internal investigations, where they exist.

The recent Israeli court ruling rejecting compensation for Attiya Nabaheen and the cover up of responsibility for the killing of Shireen Abu Akleh should dispel any remaining doubt over what Israel’s legal system is designed to serve.

But it is doubtful that the ICC will serve as a court of last resort for Palestinians with any sense of urgency.

While it accumulates resources for an expedited investigation in Ukraine, with voluntary contributions for that probe risking the court’s supposed independence, the Palestine investigation appears to be left to die on the vine.

The silence over Palestine and other investigations that don’t have the backing of powerful states “may have weakened the court’s deterrent effect, and has left a void which has been filled with political attacks on the court’s work, as well as attacks on human rights defenders,” Amnesty International recently stated.

Without an equally robust response to the crises in Palestine and Afghanistan, as well as other places, the office of the ICC prosecutor may be viewed as “just the legal arm of NATO,” as human rights lawyer Reed Brody recently put it.

Maureen Clare Murphy is senior editor of The Electronic Intifada