Tag Archive | "Gaza"

Sign at the International Criminal Court.

Critical Analysis: Gaza Conflict, Palestine, and the ICC

After a cease-fire ended the fifty day war between Gaza and Israel, Palestine wants to bring charges against Israeli individuals for war crimes and crimes against humanity. Therefore, Palestine has an important decision to make: become a state to the Rome Statute, which grants the ICC jurisdiction, or remain a non-member observer state and submit another ad hoc declaration to the ICC, which grants the ICC jurisdiction. To understand the arguments circling Palestine’s decision, it is important to know the history of the Gaza conflict.

The Palestine-Arab and Israel conflict (“Gaza conflict”) began after WWII when Jewish people wanted their own country and were given land in Palestine.  In 1967, Israel went to war and gained authority over the Gaza Strip from Egypt and the West Bank from Jordan: two territories that were heavily populated by Palestinian-Arab persons. In 2005, Israel “removed” its troops and a group called Hamas rose to power. Most countries, including the United States, consider Hamas a terrorist organization. The Hamas group refuses to recognize Israel as a country, and wants Palestinians to have their original land back and is not afraid to use violence to get it. With the rise of Hamas, Israel is a target and unsafe, therefore, Israel has been holding Gaza under a blockade, controlling Gaza’s coastline and the Gaza-Israel border. This blockade has resulted in many effects for over a million Palestinians: unemployment, hunger, and poverty.

Sign at the International Criminal Court.

International Criminal Court. Image Source: © Richard Wareham Fotographie / Alamy.

Thus, the main Palestinian demand is for the blockade to be lifted. Furthermore, Palestinians want prisoners released, reconstruction, and rights to fish off the Gaza coast. Conversely, Israel wants Hamas to recognize it and ensure its safety.

Now with a better understanding of the Gaza conflict, this brings us to the current issue: should Palestine grant the ICC jurisdiction either by accession to the Rome Statute or submitting another ad hoc declaration without accession? Because an ad hoc declaration does not obligate the prosecutor to open an investigation, accession is a better option. Accession will allow Palestine to seek judicial review if the prosecutor exercises her discretion and does not proceed with an investigation. However, under the Rome Statute, the UN Security Council can prohibit the prosecutor and the court from launching an investigation by passing a Chapter VII Resolution every twelve months. Added in 1998, this provision allows sensitive political negotiations (in this case, peace talks in the Middle East) to outweigh justice. As Joe Stork, Deputy Middle East Director at Human Rights Watch, points out this balancing test should not apply to the current conflict: “[t]he argument that Palestine should forego the ICC because it would harm peace talks rings hollow when 20 years of talks have brought neither peace nor justice to victims of war crimes.” Furthermore, “[t]he US, Israel and others who are pressuring Palestine not to seek the ICC’s jurisdiction cannot credibly argue that continued impunity for serious international crimes will help bring the conflict to an end.”

If Palestine decides to accession to the Rome Statute, it should determine whether it can secure a veto from one of the five permanent members of the UN Security Council in case a Chapter VII Resolution is submitted. Because countries like the U.S., the U.K., and France are opposed to Palestine becoming a state, it is likely that a Chapter VII Resolution would be submitted, and if a veto cannot be secured, then there is hardly a point to accession.

Open Issues:

In July 2014, the Palestine Liberation Organization (PLO) announced that at the Committee on the Elimination of Racial Discrimination’s annual meeting in August, PLO would request that Israel be designated an apartheid state because of its policies and measures against Palestine. If Israel is labeled an apartheid state, would this cause countries to shift from opposing Palestine’s enlistment of the ICC to supporting Palestine’s enlistment?

If Palestine becomes its own state, like Hamas wants, what will happen to Israelis who live in the current territory, such as the West Bank? And if the ICC is granted jurisdiction by Palestine, but Israel remains in control of Gaza, can the ICC conduct a proper investigation?


Cheyenne Moore is a 2L at the University of Denver, Sturm College of Law, and Survey Editor for the Denver Journal of International Law and Policy.

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Schoolchildren walk in debris by a damaged school in Gaza City. (Huffington Post)

Critical Analysis: Cease-Fire Stops Fight Over Gaza: Is This The End?


Schoolchildren walk in debris by a damaged school in Gaza City. (Huffington Post)

On November 22, 2012, after eight days of fighting, the Palestine militant group, Hamas, and Israel called a cease-fire. The violence resulted in over 160 Palestinians and six Israelis dead, while many more were injured. Israel’s casualties were less extensive thanks in large part to its Iron Dome defense system, which was able to intercept many of the rockets fired from Gaza. While the 1.7 million inhabitants of Gaza were severely “outgunned” by Israel, it was also the first time that Israel had experienced an attack on two of its main cities, Tel Aviv and Jerusalem.

Egyptian President Mohamed Morsy negotiated the crease-fire with a helping hand from the United States, as Secretary of State, Hillary Clinton, arrived in the wake of negotiations. While there is much discussion about the winners and losers of this fight, it seems that both sides feel they have won something.

The battle for Gaza Strip has been a bitter one, spanning decades, with stalled negotiations and violence setting the scene over the years. Little progress has been made over the decades and the same question remains: will this cease-fire finally result in a lasting change? In June of 2008, Egypt had successfully negotiated a six-month long cease-fire but during the truce, attacks had continued. Once the cease-fire officially ended in December of 2008, air strikes and ground offensives continued. In January of 2009, a week long cease-fire took place after a three-week long conflict, which resulted in 1,300 Palestinians and 13 Israelis dead. The attempted cease-fire, however, did not last as more violence and failed negotiations continued to stir the conflict.

The present cease-fire called for a “total cessation of hostile activity from Gaza,” and while the truce still stands, there is much confusion regarding its status.  Israeli Military reportedly fired shots at the feet of Palestine’s who were attempting to cross the border resulting in at least one death and several injuries. Some analysts argue the new dynamic in the Middle East will make this time different but it still remains to be seen whether any successful and lasting negotiation will result.

To complicate matters, the body of former Palestine Liberation Organization leader, Yasser Arafat was recently exhumed to test for poisoning in connection with his 2004 death. After finding high amounts of radioactive material on his belongings, the body was tested for poisoning by the element polonium. The Palestine authority of West Bank stated it believes Israel to be behind the poisoning. While this conflict is between West Bank and Israel, West Bank expressed its full solidarity with Gaza during the recent attacks and this additional event could stir up more trouble in an already troubled region.

Lina Jasinskaite is a 3L at the University of Denver School of Law and a staff editor at the Denver Journal of International Law and Policy.

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University of Denver Sturm College of Law