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David Kretzmer
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Huwara could open Israel to war crimes charges

If the authorities don’t launch an investigation into Sunday night’s rampage, the International Court may do so instead
A Palestinian man walks between scorched cars in a scrapyard after a settler riot, in the town of Huwara, near the West Bank city of Nablus, February 27, 2023. (AP Photo/Ohad Zwigenberg)
A Palestinian man walks between scorched cars in a scrapyard after a settler riot, in the town of Huwara, near the West Bank city of Nablus, February 27, 2023. (AP Photo/Ohad Zwigenberg)

Israel has reached the lowest point in its 74-year existence. The country is in turmoil over the government plan for what can only be termed a “constitutional revolution.” As if this were not enough, the minister in charge of the police is one of the most extreme and racist politicians in the country, having been convicted in the past of incitement to racism, while a radical leader of the settler movement is a “second minister of defense,” in charge of civilian matters in the West Bank. Yesterday we witnessed the fruits of this political alignment.

After a horrific attack by a Palestinian who murdered two young men, brothers Hallel and Yagel Yaniv, members of the settler community went on the rampage. They carried out a pogrom in the village of Huwara, setting light to houses and vehicles. One village resident was killed, many were injured and dozens of houses were torched.

And where was the army? There were prior warnings that acts of revenge against Palestinian communities were planned, and yet the army failed to get in position to protect local residents. When at last security forces did arrive on the scene, they failed to contain the violence. Even more depressing was the support for the pogrom by leading members of the coalition. The minister of finance, who is also the “second minister of defense,” posted a ‘like’ to a tweet by the deputy chair of the Shomron Council that called for “wiping out Huwara today.” The chair of the Knesset Committee on National Security expressed his total support for the pogrom. A Knesset member joined the rioters in Huwara to show her support for what she called “their protest.”

At this point in time, when we have a prime minister who is only concerned with obtaining a ‘get out of jail card’ and, as usual, is blaming everybody but himself for the deteriorating situation in the country, there is not much point talking about democratic or moral values. So let’s talk about the law.

Responsibility to protect

Under international law, the West Bank is subject to rules governing a regime of belligerent occupation. The IDF has the duty to ensure law and order in the territory and to protect the local population “against all acts of violence or threats thereof.” As part of this duty not only must the IDF protect the population when they are attacked, it must arrest and prosecute those responsible for violating the fundamental rights of the population. Sunday night, the IDF failed miserably to fulfill both parts of this duty. It is hard to know which is worse: that the failure was due to incompetence or negligence, or because for political reasons the commanders did not want to enter into confrontation with the settlers, who have massive political support in the present government, including that of the “second minister of defense” and the minister of national security.

Civilians may be liable for commission of war crimes. War crimes include, inter alia, “wilfully causing great suffering, or serious injury to body or health,” and “extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly.” The authorities have the legal obligation to prosecute persons responsible for these war crimes. If they fail to do so the persons who committed them may be tried before the International Criminal Court (ICC) in the Hague, and before domestic courts in other countries exercising their universal jurisdiction under the Fourth Geneva Convention that binds all states in the world. It should be recalled that the prosecutor of the ICC is already investigating whether war crimes or crimes against humanity have been committed in “the situation in Palestine.” Unless the authorities get their act together and open an investigation into the crimes committed in Huwara, with the full intention of prosecuting those responsible, the ICC prosecutor may do so in their stead.

And what about those who incited the rioters, or who expressed support for their actions? They too may face international criminal liability for inducing war crimes.

Under international law, a doctrine has developed around the notion of R2P, the responsibility to protect. If a state fails to protect those it is legally bound to protect the international community has a duty to protect them. Are we heading for the day when the international community will decide that the time has come for it to invoke this doctrine in relation to the West Bank? The International Court of Justice will convene soon to hear arguments relating to its requested advisory opinion on the status of Israel in the West Bank. The Court must consider how “Israel’s policies and practices … affect the legal status of the occupation and what are the legal consequences that arise for all States and the United Nations from this status?” How will Israel’s reactions to Huwara inform the Court’s opinion?

Israel’s founding document envisions a state “based on the precepts of liberty, justice, and peace taught by the Hebrew Prophets.” How sad it is that we may now have to rely on the international community to make sure that we live up to that promise.

About the Author
David Kretzmer is an emeritus professor of constitutional and international law.
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