UCT human rights expert Cathy Powell does not believe the Palestinian government will achieve its aims to have Israel prosecuted for war crimes at the International Criminal Court (ICC). Palestinian Foreign Minister, Riad al-Malki, visited the ICC on Tuesday, with the aim of pushing for war crimes charges to be brought forth against the Zionist regime in the wake of its four week military assault on Gaza. The visit took place at the start of a 72 hour truce mediated by Egypt, which aimed to pave the way for an extended ceasefire in the conflict between Hamas and Israel.

But Powell believes the attempt by the Palestinian officials may be fruitless as the ICC had no jurisdiction to address the matter. Israel is not a member of the ICC.

“I suspect there may be other purposes behind this visit. It cannot be, legally speaking, for the ICC to set up an investigation,” she said.

Powell was adamant that despite the courts inability to address the matter, clear evidence existed that Israel were in violation of a number war crimes. She noted the shelling of UN schools, and the killing of civilian children as two examples of this.

“The only way that the death of children or non-combatants can be justified, is if they are proportionate collateral damage, attached to a genuine military psyche. And even that has to be investigated,” she said.

Despite a seemingly dead end in terms of the ICC’s involvement in investigating the matter, Powell admitted there were other alternative routes that could be followed. Amongst those was a widespread believe that any signatories of the 1948 Geneva Convention, had the right to claim ‘universal jurisdiction’ and try the crime within their own country. However, the main problem arose in gaining custody of the alleged perpetrators of those war crimes.

“If the argument that war crimes is an entire universal responsibility is correct, then any country in the world can do it. All they would need to do is get custody of the accused individuals,” she noted.

Powell also rejected the idea of hosting a trial in absentia, noting that they were widely discouraged due to human rights reasons. This was because the accused would not need to have any responsibility to defend their case, thus declaring the trial invalid.
“I think a trial in absentia would bring more problems than it would solve,” she said.

A number of local Palestinian solidarity groups have pushed for charges to be laid against South African citizens accused of serving in the Israeli Defence Force (IDF). Addressing the issue, Powell admitted that a potential case could be a possibility, but that it would have to be established whether the accused individuals had been involved in any war crimes or not.

“Merely being in the IDF is not going to be enough to establish beyond responsible doubt that they have committed a war crime. But any South African that does commit war crimes in Gaza, or indeed anywhere, would be subject to jurisdiction of the ICC.” VOC (Mubeen Banderker)