The infliction of the agonies of torture by one group on another is one of the most aggressive assertions of domination possible. In some ways this type of physical and psychological abuse goes beyond the crime of murder into something more pathological in nature.
When the people of France discovered in the 1950s that torture was being inflicted by French soldiers on Algerian foes, the uproar was such that France itself was plunged into a chaotic state approaching the severity of civil war. So far the travesty of proliferating torture in our times, including in Israel and the USA, has yet to arouse the level of popular opposition it deserves. Of this crime against humanity Yara Hawari has written, "torture requires the total dehumanization of the person, and once that occurs the boundaries of degradation are limitless."
In late December of 2019 the possibility arose of some sort of international remedy for the ongoing litany of Israeli crimes, including the crime of torture, against the Palestinian people.
After five years of study the Chief Prosecutor of the International Criminal Court, Fatou Bensouda, issued her "preliminary report" responding to accusations she received from Palestinian sources in early in 2015.
Just days before issuing her preliminary report ICC Chief Prosecutor Bensouda had been accused by South African jurist, John Dugard, of being biased in Israel's favour. Prof. Dugard called for an investigation of Ms. Bensouda's capacity for objectivity in these matters and suggested she resign.
The technical name of the ICC is the Rome Statute of the International Criminal Court. The Rome Statute is an international treaty that gave rise to the court's existence in 2002. The ICC has 123 member states. The government of Israel is not one of them. The Israeli government has not ratified the Rome Statute and is not a party to the multilateral treaty.
The Chief Prosecutor is proceeding on the basis of her assessment that the people and government of Palestine are sufficiently recognized in the international community to constitute a state, albeit a crippled one, in both Gaza and the Occupied Territories in the West Bank. The Chief Prosecutor has argued that the Jewish settlements together with the Israeli Separation Wall have prevented the people and governing authorities of Palestine to conduct themselves in ways called for by the Oslo accords of 1993 and 1995.
Ms. Bensouda will not formally proceed with further investigations until the question of the court's jurisdiction on these areas of jurisprudence is determined by a tribunal of ICC jurists. The Chief Prosecutor has indicated that, if her investigation continues, she will have to consider not only possible Israeli infractions of law but also allegations that some Palestinian officials committed international crimes.
Benjamin Netanyahu had himself pictured in front of the Western Wall in Jerusalem accusing the ICC of "pure anti-Semitism." He announced,
New edicts are being cast against the Jewish people - anti-Semitic edicts by the International Criminal Court telling us that we, the Jews standing here next to this wall ... in this city, in this country, have no right to live here and that by doing so, we are committing a war crime.
With this initiative the ICC is moving beyond its former preoccupation with war crimes in Africa and entering what is perhaps the most fraught legal and political terrain in the world today. How will the voters of Israel vote in casting their ballots for the third time in a single year? Will Benjamin Netanyahu be pushed from office so he has to face the criminal charges aligned against him. Will Israel opt to come to terms with a long overdue juridical process that will determine much about the future of many things, including the fate of international law?
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