The purpose of this simulation is to outline the potential debate between the International Criminal Court Prosecutor and the Israeli Defense Council in a theoretical trial of Ehud Olmert in the ICC for crimes committed during the Gaza raids of 2008/2009. This scenario is fictional and it is the writer’s own speculation on the Court’s proceedings. The matters of concern include the Court’s jurisdiction, the trial of Olmert for committing certain crimes, and the verdict. Issues of admissibility will not be discussed here. The Palestinian state has referred this case to the Court.
- December 2008 – January 2009: approximately 1,500 Palestinians and 13 Israelis were killed in the Gaza raids.
- Women and children have been killed, homes raided, and hospitals bombed.
- Israeli forces began by killing six Hamas gunmen, which effectively breached their four-month ceasefire.
- Hamas responded by shooting rockets toward IDF camps, which caused no deaths or injuries.
- IDF forces began raiding Gaza, Khan Yunis, and Rafah, which are densely populated with civilians.
- Israel enforced an economic and political blockade on the Gaza Strip, restricting importation of goods, closure of border crossings, and cutting fuel and electricity.
- Israel established a buffer zone on the borders of Gaza and Israel affecting Gaza’s economy by reducing Palestinian fishing zones, reducing land available for agriculture and industry, and reducing the ability for health, water, and other public sectors to respond to the emergency state.
- The Israeli navy shelled the coast of Gaza.
- Israeli armed forces launch several attacks against buildings and persons of Gaza authorities, including the Palestinian Legislative Council building, the Gaza main prison, 6 police facilities resulting in the death of 99 policemen and 9 civilians.
- A ground invasion took place on January 3rd effectively increasing the death toll of civilians and violating several principles of international law.
- Shelling of al-Fakhura junction in Jabaliyah by Israeli armed forces, which is located next to the UNRWA school.
- Israeli forces destroy civilian life through destruction of industrial infrastructure, food production, water installations, and sewage treatment plants and housing.
- Palestinian civilians in Gaza are rounded up and detained throughout the conflict.
- A unilateral ceasefire was declared by Israel on January 18th and a few days later the land was evacuated.
- Throughout the conflict, Prime Minister Ehud Olmert endorsed the acts of the IDF and was a key decision-maker in the process as a whole.
Prime Minister Ehud Olmert has shown considerable responsibility for the acts that have occurred in the Gaza Strip through his public statements and should be tried accordingly for war crimes and crimes against humanity, among other violations under international humanitarian law. Palestine has become a non-member observer state of the United Nations since November 2012. In December 2014, Palestine ratified the Rome Statute and granted the International Criminal Court jurisdiction to adjudicate on crimes committed in its territory. The ICC is therefore required to try Olmert for the acts committed during this conflict due to the fact that Israel has yet to make reparations for the homes that have been destroyed.
According to Article 5 of the Rome Statute, the Court has the jurisdiction to try individuals for crimes against humanity and war crimes, both of which have been committed by the State of Israel under the command of Ehud Olmert, which under Article 28 of the Statute, regarding responsibility of military commanders and other superiors, considers him responsible. Furthermore, as per Article 14 of the Rome Statute outlining jurisdiction, the Palestinian State has referred the case to the Prosecutor for investigation, and as a party to the Rome Statute the court has jurisdiction over crimes that occurred in Palestinian territory.
It must be established that the State of Israel has explicitly expressed its unwillingness to become party to the Rome Statute since 2002, as it does not wish to grant the Court jurisdiction to adjudicate on matters related to its occupation of the Palestinian territories. Considering that Prime Minister Olmert was not within the Palestinian territories during the attacks, and is not the military commander or the superior of the IDF (the Minister of Defense is), the Palestinian state cannot refer him to the Court. In addition, because the State of Israel is not bound by the Statute and has not accepted the Court’s jurisdiction the Court therefore does not have the jurisdiction to try Olmert on the mentioned crimes.
Furthermore, regarding the Palestinian State’s referencing this case to the Court, Palestine only became party to the Rome Statute in December 2014 and gave the Court jurisdiction to adjudicate on matters since June 2014. The Statute expresses its non-retroactivity under Article 24; therefore, the Gaza raids of 2008/2009 are not under the jurisdiction of the court.
The Palestinian State has granted the Court retroactive jurisdiction under Article 11 of the Statute, which can go as far as 2002 when Palestine declared its independence and created a three-branched government. In addition, Palestine initially submitted its request to become a party to the Statute in 2009 and the Court is willing to consider this as its intent to have the Court consider the events of 2008/2009. Furthermore, under Article 28 of the Statute, there is no mention that the superior of military forces must be present on the land where the crimes are taking place and the practice of structure of command in the IDF has proven to show that Prime Minister Olmert is directly involved in IDF’s military actions. The attacks occurred on the lands of the Palestinian State and the Court therefore has jurisdiction over this case and we will proceed to assessing the crimes.
It must be noted that in reality, the ICC Prosecutor has rejected the retroactive application of this case, and decided to only consider situations that arose after General Assembly Resolution 67/19, upgrading Palestine’s status in November 2012. Furthermore, since the Prosecutor rejected Palestine’s admission to the Court in 2009, the issue remains debatable in the international community if this motion will be regarded as an express of intent. However, for the purposes of this simulation, we will assume that the Prosecutor has accepted and will proceed to assess the crimes.
Crimes against humanity are explicitly defined in Article 7 of the Rome Statute as attacks that are “widespread and systemic” committed against a civilian population including, but not limited to, murder, extermination, the forcible transfer of that population, torture, persecution of groups based on political, racial, national, ethnic, cultural, or religious bases, apartheid, among others, all of which Israel is guilty of. The attacks have been proven to be widespread throughout Gaza, Khan Yunis, and Rafah and were systemic throughout the three-week period.
Furthermore, War Crimes are defined under Article 8 of the Statute. Israel is in violation of this article in which it has breached the Geneva Conventions of 1949 in several cases, which amounts to war crimes.
Olmert has been responsible for IDF’s indiscriminate attacks that include, but are not limited to, willful killing of civilians, causing great suffering and serious injury, extensive destruction and appropriation of property, intentionally attacking civilians and their property, among others. The most explicit violation is that of Article 8.2.b.viii where there occurred an indirect transfer by the Occupying Power of a large portion of the Palestinian population within Palestine, Israel, and outside both territories to countries such as Jordan, Syria, Lebanon, and Egypt.
Finally, Olmert was in violation of the principle of necessity and proportionality, whereby the Israeli response to the threat of attack by Hamas forces is not justified by military necessity as mentioned by the Human Rights Council in the Report of the UN Fact Finding Mission (p. 17). This is particularly true when Israel deliberately attacked governmental buildings and civilian property (as mentioned in the facts) claiming that these institutions are a part of the “Hamas terrorist infrastructure”, while the UN Fact Finding Mission rejected this position entirely with the argument that there was no evidence to provide that these institutions “made an effective contribution on military action” (p. 17) and therefore was useless in furthering military benefit for Israeli forces. It is clear that there was a deliberate target of civilians, which not only violates the Geneva Conventions in the protection of civilians, but also completely violates the principle of military necessity and proportionality under customary international law. The attacks were not proportional, as the Hamas rocket response, that did not cause any injuries, did not constitute as a large-scale attack that required the invasive response that Israel took on January 3rd, which was also determined by the HRC (p. 86). Israel’s use of certain weapons such as white phosphorus and uranium munitions is also a violation of the principle of proportionality as well as a violation of the Geneva Conventions in causing superfluous injury and unnecessary suffering to soldiers let alone civilians (p. 194 of the HRC). We aim to reemphasize Olmert’s violation of Article 28 of the Rome Statute, where Olmert is “criminally responsible for crimes within the jurisdiction of the Court committed by forces under his…effective command and control, or effective authority and control” as per the provision under section (a). It is significant to note that Olmert knew that his subordinates were committing these acts and “failed to take all necessary and reasonable measures within his…power to prevent or repress their commission…” Olmert specifically ordered the launch of a wide-scale military attack on Gaza. He is therefore in breach of Article 28 in its entirety.
It must be noted that in 2008, Palestine was yet to be declared a state by the United Nations and gain recognition of other states. Its Declaration of Independence in 2002 does not constitute statehood as per the Montevideo Convention. Therefore, it was considered to be under the military control of Israel and lacked the attributes of sovereignty as the Palestinian Territories during the 2008 conflict. Furthermore, the attacks that were occurring were led by the non-state actor, Hamas, which is deemed as a terrorist organization. This means that the conflict occurring is of a non-international character and therefore Common Article 3 of the Geneva Conventions is the only applicable law under Article 8.c, d, e, and f of the Rome Statute, which Olmert cannot be found guilty of. This is because the violations of these were not committed directly by Olmert. Considering the Prosecutor has invoked Article 28, there has been no proof to show that Olmert was directly responsible for the conduct of each and every one of his soldiers and commanders. Olmert, even under Article 28, is only in charge of the large military strategy. Common Article 3 stipulates that no attacks should be made on persons taking no active part in the hostilities. Any breaches of this article would potentially hold solider or commanders liable. There is no proof that Olmert knew about these violations and could have prevented them.
To discuss the conflict itself, at the beginning of the conflict, Israeli Defense Forces suspected a potential attack on its barracks by Hamas gunmen. This potential threat against them by a non-state actor who poses a terrorist threat allows the IDF to invoke its right to preemptive self-defense. The 2008 Gaza raid was a necessary step towards achieving peace in the region. As the Israeli military stated, “This was a pinpoint operation intended to prevent an immediate threat, there is no intention to disrupt the ceasefire, rather the purpose of the operation was to remove an immediate and dangerous threat posed by the Hamas terror organization.” The attack of the policy station and other governmental buildings serviced the purpose of dismantling Hamas members. The attack was not made to harm civilians but was a military objective considering that most members of the Palestinian police force are members of Hamas and are therefore a lawful military objective.
The invasion that occurred on January 3rd was necessary to end the conflict, which it did a few days later and Olmert then ordered for the IDF to evacuate Gaza. He, therefore, had the intention of simply deterring the threat and ending the conflict; however, due to Hamas’s retaliation and indiscriminate attacks against Israeli civilians, the IDF were forced to react in a necessary and proportional manner, both of which have been proven.
The Hamas organization has chosen to use the tactic of hiding behind civilians causing the IDF to be forced to attack residential areas where the organization resides. These are necessary targets that justify military utility. With regards to the proportionality aspect, the use of certain weaponry is proportional to the threat of future attacks that Hamas may pose on Israel.
The threat of future attacks is an element of jus ad bellum and not the law of armed conflict (jus in bello). We are questioning the elements of the crimes from an IHL perspective, so kindly refrain from involving irrelevant aspects. Please proceed.
Thank you, Judge. The final statement is that the Israeli forces took the necessary and adequate precautions by warning civilians before every attack. They did this through telephone calls, leaflets, and radio broadcast. Israel also encouraged residents to leave the premises where danger may occur, as noted in the UN Fact Finding Mission on page 18.
Therefore, Olmert is in no violation of Article 8.e of the Rome Statute due to the fact that the attacks of civilians or civilian materials were clearly not intentional but necessary to end the conflict and deter the threat.
There is a concrete argument that the International Criminal Court may have jurisdiction over the case of the Prime Minister Ehud Olmert committing crimes during the Gaza raids of 2008/2009. However, the intricacies of the conflict reveal much debate and controversy, as both parties to the conflict have arguments in favor and against them. This kind of tribunal would most likely take months, if not years, to reach a verdict. Therefore, it would be difficult to provide a simplified verdict in such a case. This was merely a demonstration of the complications that may arise from such a tribunal.