THE HAGUE — As the Great March of Return by Palestinians in the Gaza Strip nears its eighth month, legal organizations in the besieged Palestinian enclave have called for the International Criminal Court to prosecute Israel over its forces’ repeated fire against unarmed protesters.

By the end of the 30th weekly mobilization last Friday, over 200 days of Israeli tear gas and live ammunition, along with occasional artillery fire and airstrikes, had killed 163 protesters, injuring 8,770 more, the Palestinian Center for Human Rights reported. The group added:

PCHR emphasizes that continuously targeting civilians, who exercise their right to peaceful assembly or while carrying out their humanitarian duty, is a serious violation of the rules of international law, international humanitarian law, the ICC Rome Statute and Fourth Geneva Convention.

Thus, PCHR calls upon the ICC Prosecutor to open an official investigation in these crimes and to prosecute and hold accountable all those applying or involved in issuing orders within the Israeli Forces at the security and political echelons.”

Israeli forces killed another demonstrator, 17-year-old Muntasir Muhammad Ismail al-Bazz, on Tuesday, making him the 34th Palestinian minor to die.

Through the Legal and International Advocacy Committee of the National Commission that leads it, the March itself has repeatedly urged the ICC to act.

Most recently, the Committee said in a statement last Friday that it “reiterates its call on the Prosecutor of the International Criminal Court to make a fair decision to open a criminal investigation into Israeli crimes committed in the Palestinian case.”

“Actors on both sides”

On October 17, ICC prosecutor Fatou Bensouda, said she was “alarmed by the continued violence, perpetrated by actors on both sides, at the Gaza border with Israel.”

In an earlier statement that similarly combined plain facts with vague insinuations, Bensouda warned on April 8:

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.”

Unlike Israel’s massive violence against civilians, no incidents of “the use of civilian presence for the purpose of shielding military activities” have been documented, except perhaps in Israeli settlements near the Gaza Strip, where soldiers regularly deploy during the March.

“Presenting a wildly unbalanced situation as balanced is as morally bankrupt as it is intellectually indefensible,” Gregory Shupak wrote Tuesday in an article that, while analyzing media coverage of the March, might have instead described Bensouda’s attempts to impose equivalence on a scenario that has none.

“No shortage of evidence”

“Speaking to a group of colleagues who participated in a meeting not with Bensouda herself, but with members of her staff at the [office of the prosecutor], they reported that they felt there was ‘no real political will’ to even do a proper investigation,” Suzanne Adely, an International Association of Democratic Lawyers (IADL) bureau member, told MintPress.

On September 13, the IADL launched a petition calling on the ICC to move forward with an investigation and prosecution of Israel.

“There is no shortage of evidence of Israeli war crimes, but the ICC has failed to take any meaningful action toward holding Israel accountable,” Adely added. “But it’s still imperative to try.”

A woman comforts a wounded boy after he was shot by Israeli troops on the beach at the border with Israel in northern Gaza, Oct. 22, 2018. Khalil Hamra | AP

“War crimes”

Some hope the sheer scale of Israeli fire against unarmed civilians, along with the copious documentation of it, will prod the ICC to action.

Both Amnesty International and Human Rights Watch, normally reserved in their criticism of Israel, have accused the occupying state of “war crimes.”

Michael Lynk, the United Nations’ special rapporteur for human rights in occupied Palestine, echoed their frank assessment on October 2:

[T]he killing and wounding of demonstrators, in the absence of any strictly-measured justification, and within the context of occupation, may amount to willful killing, which is both a grave breach of the Fourth Geneva Convention, and a war crime.

It is also a serious violation of international human rights law and its protections for the rights to freedom of expression and assembly.”

“Insufficiently African”

But some suspect that even if the simple reality of Israel’s mass killing of unarmed demonstrators at the Gaza barrier could overcome Bensouda’s hedging recalcitrance, the nature of the ICC itself might pose a more insurmountable challenge.

“No Western leader has ever been prosecuted — or even investigated — by the ICC,” Audrey Bomse, co-chair of the National Lawyers Guild’s Palestine subcommittee, told MintPress.

Over its 16-year history, the ICC has prosecuted 43 defendants. 15 more remain at large.

Without exception, every one of them was an African. Nearly all have been black.

“Tony Blair was not tried for war crimes over his involvement in the 2003 Iraq war, as the Prosecutor found that the ‘decision by the U.K. to go to war in Iraq falls outside the Court’s jurisdiction,’” Bomse said. “It was joked that he was ‘insufficiently African’ to be indicted.”

“The toy of declining imperial powers”

Last year, the African Union passed a non-binding resolution calling on its member states to withdraw en masse from the ICC, which Kenyan President Uhuru Kenyatta — a former ICC defendant — has called “the toy of declining imperial powers.”

Many of the same African states had earlier joined the ICC mainly to gain access to lucrative European markets through the Cotonou Agreement.

Israel’s lavish trade agreements have come with no such strings attached.

“The ICC might launch an investigation of Israel’s actions both in Gaza and the West Bank in order to preserve legitimacy, as it is being accused of being a court which only prosecutes African war criminals,” Bomse said.

Ultimately, she added, “I think it is highly unlikely that any Israeli military or political leader will be prosecuted by the ICC.”

With the ICC’s reputation in decline and its validity an open question, officials at the court are likely weighing their next move carefully.

“If they do act, I think it will be because they need to maintain their legitimacy in the face of growing pressure from the international community,” Adely said.

Top Photo | Mourners carry the body of 11 year-old Nasser Musabeh, who was shot and killed by Israeli troops during a protest at Gaza’s border with Israel, during his funeral in Khan Younis, southern Gaza, Sept. 29, 2018. Sanad Abu Latifa |AP

Joe Catron is a MintPress News journalist covering Palestine and Israel. He is also a solidarity activist and freelance reporter, recently returned to New York from Gaza, Palestine, where he lived for three and a half years. He has written frequently for Electronic Intifada and Middle East Eye and co-edited The Prisoners’ Diaries: Palestinian Voices from the Israeli Gulag, an anthology of accounts by detainees freed in the 2011 prisoner exchange.

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