Killing of Shireen Abu Akleh is potentially a war crime
The killing of Shireen Abu Akleh was particularly heavy to process and comment on. Like many, I learned about Palestine through her eyes and fact-based reporting since the days of the Second Intifada. Her loss has shaken the Palestinian community and the whole world and prompted sober reflection and action.
Looking at the record, this is part of a recurrent targeting of journalists and media workers by Israel in the Occupied Territories. More than 40 Palestinian journalists have been killed and hundreds injured there since 2000. This and the associated failure to investigate and prosecute those responsible are serious violations of the right to life and freedom of expression. Journalists’ safety is essential in guaranteeing the right to receive impartial information as well as freedom of opinion.
These freedoms are even more vital in the context of the Occupied Palestinian Territory, where voices of civil society, Palestinian and Israeli alike, have been increasingly targeted by repressive measures. Targeting journalists blatantly violates international law, the right to life, first and foremost, as well as Israel’s obligation as an Occupying Power: Humanitarian law establishes that journalists must not only be respected — i.e., they are not to be targeted — but also actively protected. Measures have to be taken to ensure their safety while on duty. There is no evidence of these safeguards in occupied Palestine. Under international law, journalists in the line of duty are civilians and the intentional targeting of civilians amounts to a war crime under the Rome Statute of the International Criminal Court.
The excessive use of force during purported law enforcement operations in the Occupied Palestinian Territory, resulting in killing, maiming and wounding of journalists is one part of the widespread and systematic violence against Palestinians taking place in the Occupied Palestinian Territory. This is largely documented by Palestinian, Israeli and international nongovernmental organizations, as well as independent UN experts (like my predecessors) and commissions of inquiry. Many of the investigated incidents have been denounced as possible war crimes.
Looking at the last year, since the new Israeli government coalition came into power in June 2021, Israeli forces have killed 76 Palestinians, including at least 13 children. In the last two months alone, 29 Palestinian fatalities were reported. This is somewhat unavoidable: The longest occupation in modern history, which has no legal raison d’être, requires stifling control and indescribable violence and repression to keep the occupied population subjugated and, without rights, their inalienable and fundamental right to self-determination first and foremost.
What is needed is an independent, transparent, rigorous investigation of the killing of Abu Akleh. Israel should certainly ensure its utmost cooperation and accept not leading it. Israel’s military investigative system is well known to fall short of international standards of due process. In a few exceptional cases in which the killing or injury was caught on camera or video and received a high level of public attention, investigations may occur and the findings and conclusions made public. That does not mean full accountability.
Israel’s military investigative system is well known to fall short of international standards of due process.
An example is the case of Abdel Fattah Al-Sharif, a young Palestinian man who was shot in the head and killed by an Israeli soldier in Hebron while he lay unarmed, wounded and incapacitated on the ground. The responsible soldier was convicted of manslaughter, sentenced to a mere 18 months in jail and released after nine months. In 2016, 21-year-old voluntary paramedic Razan Al-Najjar, 21, was shot in the chest by a live bullet fired by Israel forces in Gaza and died. No indictment was reported. As Israeli and Palestinian human rights organizations denounce such crimes, Israel’s military justice system remains part of the wider infrastructure of the occupation, created and operated to defend and police the occupation and secure its perpetuity.
The culture of impunity, which the High Commissioner for Human Rights Michelle Bachelet has recently denounced in the aftermath of Abu Akleh’s killing, has remained widespread and persuasive. Reports from the Office of the UN High Commissioner for Human Rights reveal an “almost total failure to ensure accountability for numerous allegations of the excessive use of force by Israeli forces in the context of law enforcement operations in the Occupied Palestinian Territory.” It is not about not “having faith” that Israel has the capacity to carry out a serious investigation, it is the stark track record of impunity following incidents like the killing of Abu Akleh.
When it comes to what an independent investigation means, there should be independent competent, legal, military and forensic experts investigating and accessing all sources of information and evidence. Investigating this killing, along with other incidents that may be in breach of international law, falls within the competence of both the Commission of Inquiry on Israel/Palestine that the Human Rights Council appointed last year and my mandate. Our findings would inform the current investigation of the ICC’s prosecutor.
The International Federation of Journalists has recently submitted a formal complaint to the ICC detailing the systematic targeting of Palestinian journalists on behalf of four named victims who were killed or maimed by Israeli snipers while covering demonstrations in Gaza — Ahmed Abu Hussein, Yaser Murtaja, Muath Amarneh and Nedal Eshtayeh — as well as the targeting of the media and the bombings of the Al-Shorouk and Al-Jawhara towers in Gaza City in May 2021.
It is also necessary not to lose sight of the broader context of Abu Akleh’s killing: An occupation that has lasted 55 years should be treated as illegal because it is not temporary, it is not justified by military necessity, it is carried out in a way that torments, instead of protecting, the occupied population and it has translated into the de facto annexation of Palestinian territory by force, as well as further Palestinian dispossession and displacement. All this contextual illegality is relevant for the ICC ongoing investigation.
The international community should stop approaching the reality in Occupied Palestinian Territory as a humanitarian emergency, if not as a man-made humanitarian emergency. It is a political reality marked by protracted illegalities and impunity, which requires firm action based on accountability and respect for international law. This is not naive rhetoric. This is a political necessity.
• Francesca Albanese is the UN’s special rapporteur on the situation of human rights in the Palestinian territories. She is an affiliate scholar at Georgetown University and a senior adviser at the Amman-based Arab Renaissance for Democracy and Development.