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Could Israel face war crimes charges?

July 31st, 2014
04:17 PM ET

By Mick Krever, CNN

“Today the world stands disgraced.”

That is how the head of United Nations Relief and Works Agency, which runs shelters for Palestinians, reacted to the shelling of a Gaza school that was serving as a U.N. shelter for 3,000 Palestinians.

Twenty people were killed, according to the Palestinian Health Ministry.

The United Nations blames Israel for the attack. Israel has not given a direct explanation, but says many Hamas rockets misfire and fall within Gaza; it also says that Hamas purposefully fire weapons from civilian areas and that the Israeli military does not target civilians.

UNRWA says that it had sent the school’s GPS coordinates to Israel 17 separate times to ensure it would remain safe.

“You see the Israelis shifting over the last several days to ground weapons,” CNN Pentagon Correspondent Barbara Starr says. “You see them using tanks, mortars, artillery.”

“The real pinpoint accuracy comes if you’re going to go back to relying on airstrikes, because that type of munition – bombs out of aircraft – these days are guided to their target by a laser using GPS coordinates.”

Even the United States, Israel’s closest ally, said Thursday that the shelling of the school was “totally unacceptable and totally indefensible.”

Could Israel face war crimes charges?

“It certainly could,” Geoffrey Nice, one of the world’s most renowned war crimes prosecutors, told CNN’s Jim Clancy, in for Christiane Amanpour, on Thursday.

Nice was the lead prosecutor of Slobodan Milosevic, the former Serbian leader.

“It’s always been open for Palestine to bring them, if it was prepared to sign up as a states party of the International Criminal Court.”

“If it does that, two things follow: It will be able to refer this matter to the prosecutor of the Court for her to consider; but it will expose itself to an investigation as well.”

That, of course, is key.

Though the focus of world condemnation is currently on Israel for the conduct of its Gaza offensive, the Israeli government maintains that Hamas is a terrorist organization that fires rockets towards Israel with no regard to what, or whom, they land on.

Nice made clear that “without proper investigation” it would be inappropriate for him “to express an opinion on culpability.”

‘Taking a risk’

“Where you are engaged in combat, in areas where there’s a risk of collateral damage to civilians, questions of proportionality arise, as well as questions of foreknowledge of the risk that you may be taking.”

If someone is using something like a school or hospital from which to fire rockets, as Israel alleged Hamas does, “it can expose that school or hospital to attack.”

“Hamas,” Starr said, “are very expert at a sort of shoot and scoot tactic – they shoot and they move very quickly.”

Nice told Clancy that Israel “may have the right of self-defence, providing it takes appropriate steps to avoid excessive collateral damage.”

But civilians and places like schools and religious sites, he said, are protected under various international statutes, including the Geneva Conventions. Anybody conducting a war who kills civilians or damages protected sites is “always taking a risk.”

“The really good news, if there is any good news out of this, is that we seem to be edging towards the position where the international citizen no longer accepts that what may be crimes in conflict go unaccounted for.”

A changing dynamic

“Until now, there have been a great bloc of countries – America, Russia, China, and other big countries, but also Israel – who are not signed up to the International Criminal Court and who, it has seemed, are immune from pursuit” of prosecution, Nice said.

In fact, things have been changing.

He cited the case of a Comoros-flagged ship, the Mavi Marmara, which tried to break the blockade on Gaza in 2010. Israel led an assault on that ship before it reached Gaza.

Because the ship was registered in Comoros, which is a member of the ICC, Nice said, “the prosecutor is having to consider that application to open an investigation, which would concern Israel.”

But of course if Palestine, as he referred to it, were to bring a case, “it would be an opportunity to look at both sides, which must be the right thing to do.”

And to take things one step further, such a case could even concern the United States, which supplies weapons to Israel.

Just this week the Pentagon said it was resupplying Israel with “tank rounds and illumination rounds.”

“If there were to be an investigation into this situation involving Israel,” Nice said, “the investigation could extend to those who knowingly supplied the weapons – if, by chance, they would know of the risks of war crimes being committed by the use of those weapons.”

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