Last week supporters of Palestinian human rights were buoyed by the announcement from the prosecutor of the International Criminal Court that she had decided to open a formal investigation of Israel for war crimes in the occupied territories, including the ongoing settlement project in the West Bank and East Jerusalem and the onslaught in 2014 called Operation Protective Edge. She is also investigating Hamas and Palestinian militant groups for war crimes.
“There is a reasonable basis to believe that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip,” prosecutor Fatou Bensouda said.
“You can’t gainsay the fact that at least at a symbolic level, something significant happened,” says Norman Finkelstein, who is an expert on the ICC. “A Rubicon has been crossed. Or to put it in other terms, an American red line has been crossed, because the U.S. has said, Open an investigation and we destroy you.”
Because of the international politics of the issue, Finkelstein says that hopes for a just formal outcome are likely to be dashed by the court. He believes that the case will be dismissed on a technical ground, under tremendous pressure from Israel and the U.S.
Norman Finkelstein down by the sea in Brooklyn
The opportunity the case presents is in shaping public opinion, Finkelstein said in an interview: for advocates for Palestinian rights to make their case as the Hague mulls the legal one. “Pressure can come from both sides.”
Fatou Bensouda is going to be subjected to the same sort of vilification that Israel and its friends brought to bear ten years ago on Judge Richard Goldstone, who after accusing Israel of targeting civilians in Gaza in a UN Human Rights Council report was smeared with a broad brush, notably Alan Dershowitz saying that he was a traitor to the Jewish people. Ostracized at times even within his South African Jewish community, Goldstone later recanted some of the charges.
Finkelstein is soon to publish a book about Bensouda’s failure to prosecute an earlier referral on Palestine to the ICC, involving Israel’s killing of 10 passengers on board the aid boat the Mavi Marmara, which was under sail to Gaza from Turkey in May 2010 when Israeli commandoes boarded the vessel in international waters in the middle of the night.
That case was brought to the ICC by the Comoros Islands because the boat sailed under a Comoros flag. But after a years-long preliminary investigation, Bensouda refused to launch a formal investigation, and sided with Israeli arguments about the aggressive conduct of passengers and crew on the boat, as somehow justifying lethal force.
Bensouda experienced broad criticism over that ruling, Finkelstein says– from officials inside the ICC, from the human rights community, from an article by John Dugard, a professor of international law with great standing, and from the impending publication of Finkelstein’s own book, titled J’Accuse.