Shireen Abu Akleh: New evidence submitted to ICC

Jerusalem24 – Nadeen Alshaer & Ehab Tahboub – On 20 September 2022, the International Federation of Journalists (IFJ), International Centre of Justice for Palestinians (ICJP), and Palestinian Journalists Syndicate (PJS) delivered a new legal complaint to the International Criminal Court (ICC) regarding the killing of Palestinian American journalist Shireen Abu Akleh and the shooting of journalist Ali Samoudi.

Journalist Shatha Hanaysheh, who was present at the scene and also came under fire, is also listed in the complaint.

The complaint includes the findings of all investigations conducted as well as all recorded data and testimonies, including new evidence, concerning the killing of Abu Akleh who was shot on 11 May by an Israeli sniper while covering an Israeli army raid of Jenin in the northern occupied West Bank.

The Palestinian Journalists Syndicate said in a statement on Tuesday, “Despite the enormous pressures exerted by the occupation and its affiliates abroad, the complete file of the complaint against the Israeli occupation was handed over.”

“She joins a long list of journalists”

In April 2022, weeks before Abu Akleh’s killing, a coalition of the IFJ, the Palestinian Press Syndicate, and leading human rights lawyers submitted their first complaint to the ICC over the “systematic targeting” of Palestinian journalists.

The PJS described in a press release on Tuesday how Abu Akleh, Samoudi, and Hanaysheh join “a long list” of journalists targeted by Israeli forces in Palestine.

“A previous Communication was submitted to the ICC in April 2022 which requested that the Office of The Prosecutor open an investigation into the systematic targeting of Palestinian journalists (including Ahmed Abu Hussein, Yaser Murtaja, Muath Amarneh, and Nidal Eshtayeh) and [targeting] of media infrastructure by the IOF.”

At least 50 journalists have been killed by Israeli forces in Palestine since the year 2000, according to the PJS.

Shortly after Abu Akleh’s killing in May, Al Jazeera also filed a case at the ICC.

New evidence: A final nail in the coffin…?

A new report published by Forensic Architecture in collaboration with Palestinian NGO Al-Haq, simultaneously submitted to the ICC and released to the public, shows conclusive evidence that the Abu Akleh was deliberately shot and killed by an Israeli soldier. This confirms the findings of half a dozen earlier independent reviews of her killing, including the United Nations which found that an Israeli bullet was responsible for her death.

The new report includes a detailed digital reconstruction of the killing based on previously unseen footage recorded by Al Jazeera staff at the scene, eyewitness testimony, open-source video, and a drone survey of the area, and “offers the most conclusive account yet of what transpired that day,” according to The Intercept.

Forensic Architecture and Al-Haq representatives were at The Hague this week when the new evidence and complaint were submitted.

In a statement on their website, Al-Haq explains they “prepared a legal brief highlighting that the Israeli Occupying Forces’ (IOF) intentional targeting of the journalists, including Shireen Abu Akleh, is clearly in violation of international humanitarian law and international human rights law. Specifically, the targeting and killing of Shireen Abu Aqleh amount[s] to wilful killing, a grave breach of the Fourth Geneva Convention and a war crime under the Rome Statute.”

The new evidence directly refutes (as have previous reports) the claims of an Israeli army probe which states “it is not possible to unequivocally determine the source of the gunfire which hit Ms. Abu Akleh. However, there is a high possibility that Ms. Abu Akleh was accidentally hit by IDF gunfire that was fired toward suspects identified as armed Palestinian gunmen, during an exchange of fire in which life-risking, widespread and indiscriminate shots were fired toward IDF soldiers.”

The minute-by-minute reconstruction published by Al-Haq and Forensic Architecture shows that in the minutes leading up to Abu Akleh’s death, there were no armed Palestinian fighters in the vicinity or even any shots fired.

Debunking the Israeli narrative

The report includes a simulation of the Israeli sniper’s field of vision based on precise geolocation data, unequivocally proving the shooter was able to clearly identify Abu Akleh and her colleagues by the “Press” insignia on their flak jackets.

The report further emphasizes that the shooter has a “clear line of fire” indicating “precise aim”, and that the firing continued as the journalists sought shelter – and that a civilian attempting to provide aid to Abu Akleh was also shot at each time he attempted to approach her.

Barrister Tatyana Eatwell of Doughty Street Chambers, who is representing Ali Samoudi, Shatha Hanaysheh, and Shireen Abu Akleh’s family, told Jerusalem24 correspondent Riham Abu Aita in The Hague on Tuesday following the submission of the complaint, that different evidence and analysis “undermines” the Israeli position that Abu Akleh was the victim of indiscriminate fire, and supports the case that she was a clearly visible, marked member of the press.

“So, if it is the case being put forward by the Israeli army that this is somehow a mistake, then that’s to be submitted for criminal investigation,” explains Eatwell. “Yet they haven’t had a full criminal investigation in this matter, and that’s something that needs to be examined.”

As the internal inquiry conducted by the Israeli army didn’t come to any inclusive finding, it rests only on two possibilities: that Abu Akleh was killed by indiscriminate fire or that she was killed by Palestinian gunmen.

“You cannot identify intent”

Eatwell explains that the army probe’s concurrent claims that they both cannot identify the source of the fire, but can conclusively find that there was no intention to kill her, are contradictory in themselves.

“Unless you identify who fired the shot, you cannot identify what they intended to do at the time, and what they understood to be the case at the time,” says Eatwell.

Abu Akleh’s family has been calling for the US to conduct its own independent investigation into the killing of Abu Akleh, and a number of US legislators have requested the same.

“Like we said before, and as other reports said previously, there were more than 16 shots fired towards Shireen and the media and her colleagues who were standing in that alley,” Shireen’s brother Anton Abu Akleh said while standing in front of the ICC. “They even targeted the person who was trying to pull her into safety after she was shot down.”

Abu Akleh’s family reiterated they will do everything to hold Israel to account over the killing.

What’s next at the ICC?

Submitting a complaint at the ICC does not guarantee a prosecution will take place; and of course a prosecution does not guarantee a conviction.

“As is already known, the ICC jurisdiction doesn’t extend to governments or countries, but rather prosecutes and investigates individuals who might be working with these governments, entities, or groups,” PJS Board member Musa Alshaer explains to Jerusalem24. “So, the individuals to be investigated may be officers or military leaders who were present when the incident occurred.”

The ICC is a self-described “court of last resort”. In other words, the ICC intervenes only in situations where States themselves are either unwilling or unable to genuinely investigate and prosecute the perpetrators of genocide, war crimes and crimes against humanity such crimes.

The Israeli government has rejected the jurisdiction of the ICC, and the Israeli military establishment has a documented history of shielding its officers from accountability. “We know well that the Israeli government and military will not allow the prosecution of their soldiers or officers,” states Alshaer. “On the contrary, in many cases soldiers were rewarded by the government.”

However, Alshaer explains that certain known and named individuals in the Israeli military, such as the military of Chief of Staff, Defense Minister, as well as the officer of the military squad that was present and ordered the action, are individuals that “can be prosecuted by the ICC.”

“The legal chambers will be following up,” says Alshaer. “On our part we [PJS] will be following up on every step including the opening of the investigation. There is no timeline or limit on when the investigation will be opened, but we hope that the ICC will proceed with the investigation as soon as possible.”

Former president of the IFJ, Jim Boumhelha, said at The Hague on Tuesday, “Every single case that journalists took to Israeli courts came to nothing. [But] this is an international court, which is in the hands of all the countries and all the people in the world.”