Shireen Abu Akleh killing: The legal mechanisms available for justice

The killing of Palestinians by the hands of Israeli authorities is constantly glossed over in western media as collateral injury in a battle between Israeli forces and Palestinian combatants.

However whereas many deaths of innocents are missed, some include elevated diplomatic and authorized stress for the US and different western international locations which can be shut allies to Israel.

Within the case of Shireen Abu Akleh’s killing by the hands of Israeli forces, her standing as a journalist and a US citizen opens pathways for potential punitive measures for these accountable, and in addition provides her household and family members various mechanisms to pursue justice on a worldwide stage.

‘The US authorities … needs to be taking the lead on truly conducting an investigation and never counting on the Israelis’

– Adam Shapiro, Democracy for the Arab World Now

Each throughout the US and on the worldwide degree, authorized consultants and rights advocates say there are a number of methods to hunt accountability over the killing, and various precedents that pave the way in which for investigations and civil litigations.

Abu Akleh, a veteran journalist of greater than 25 years at Al Jazeera, was shot and killed on Wednesday morning throughout an Israeli raid within the Palestinian village of Jenin. Whereas Israeli authorities have launched an investigation into the matter, they’ve already walked again their preliminary declare that it was a Palestinian gunman who shot her.

A number of eyewitnesses, together with Center East Eye contributor Shatha Hanaysa, assert that Abu Akleh got here underneath Israeli sniper hearth.

The Israeli investigation remains to be in its infancy, however an preliminary probe acknowledged she was killed about 300 toes from Israeli forces and that the Israeli military’s elite Duvdevan Unit did hearth a number of rounds within the route of the place Abu Akleh and different journalists had been positioned.

Israel has mentioned it can cooperate with Palestinian authorities, in addition to Qatar – Abu Akleh’s employer Al Jazeera is a Qatari state-affiliated information company.

Nonetheless, rights advocates have issued issues over Israel’s investigation into the killing, noting that earlier investigations have led nowhere, together with a latest probe into the loss of life of Omar Asad, an 80-year-old Palestinian with US citizenship who died underneath Israeli custody earlier this yr.

“It is clear that primarily based on the documented observe document of the Israeli army and authorities that they’ve a sample of not investigating instances during which their forces are concerned within the killing of civilians, journalists, after which on high of that, Americans and different overseas nationals,” mentioned Adam Shapiro, advocacy director for Israel-Palestine at Democracy for the Arab World Now.

“The US authorities, which has a stake on this case, as a result of Shireen was an American citizen, needs to be taking the lead on truly conducting an investigation and never counting on the Israelis to analyze.”

Shapiro famous there’s a precedent to indicate the US can take a lead in investigating Abu Akleh’s loss of life, citing the case of Daniel Pearl, an American journalist who was kidnapped and killed in Pakistan in 2002. The US despatched FBI brokers to analyze the matter alongside cooperative Pakistani officers.

“So on this case with the Israelis – there have been earlier instances with the Israelis – we will assume that the Israelis could be a little bit bit hostile, and we all know they are not all the time fascinated about investigating these claims,” Shapiro mentioned.

“So there’s much more of a cause why the US needs to be aiding in a case like this.”

‘A matter of effectiveness’

The United Nations and the Worldwide Felony Court docket (ICC)  may additionally play a job within the investigation. Each the ICC and the UN Excessive Commissioner for Human Rights have launched probes into Israeli struggle crimes, the latter of which can current its first findings subsequent month.

“That is an avenue that already exists. It was mandated a yr in the past. Simply subsequent month, we will see the primary response,” mentioned Sherif Mansour, Center East and North Africa programme coordinator on the Committee to Shield Journalists, referring to the UN’s investigation.

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“And I believe this can be a case the place the timing of [the killing] needs to be informing the findings and proposals of the report that may come out in June,” he informed MEE.

UN officers have already known as for an unbiased probe into the matter. Mansour mentioned it’s because Israel has continued to indicate its ineffectiveness at coping with the killing of journalists.

“It isn’t only a matter of jurisdiction. It is a matter of effectiveness. We on the committee documented final yr a journalist who was killed in an Israeli bombing in his dwelling, they usually’re nonetheless investigating whether or not that was direct focusing on or not,” he mentioned.

“There are not less than 18 journalists that we have counted since 1992 who’ve been killed by the Israeli or Palestinian sides, and none of these instances have seen any accountability towards the perpetrators.

“That is why a UN investigation and that is why the Human Rights Council have moved. They do not often transfer till all of the native and regional accountability mechanisms have been exhausted.”

Legal guidelines and sanctions

Regardless of the pessimism in direction of an Israeli probe, there are a number of methods during which lawmakers within the US and Europe may punish these instantly concerned within the killing.

Within the US, the World Magnitsky Act might be invoked to impose sanctions on the people or group that’s liable for taking pictures the Palestinian journalist. Since being signed into regulation in 2016, the act has been utilized by the US authorities to impose sanctions on people in China, Guatemala, Cuba, Bulgaria, and others in a number of international locations.

“The Magnitsky Act would additionally be capable of impose sanctions then on these people who had been the unit of the army that is been concerned,” Shapiro mentioned.

The European Union additionally has its personal model of this regulation, the European Magnitsky Act, and will use it to equally sanction the people concerned within the taking pictures of Abu Akleh.

There’s additionally the Leahy Regulation, a US regulation named after Senator Patrick Leahy, which might be invoked to bar the US authorities from offering army help to overseas safety forces liable for gross human rights violations, together with extrajudicial killings.

Whereas Shapiro mentioned that it’s unlikely that both act could be used towards Israel given its standing as a detailed US ally, the killing of Abu Akleh matches throughout the parameters of the legal guidelines.

Nonetheless, “Sadly, each the Magnitsky Act and the Leahy Regulation do not actually have a lot to do with accountability when it comes to the precise killing itself, from the angle of who the person perpetrator was,” he added.

Take it to US courts

For Abu Akleh’s household, her US nationality additionally affords them various alternatives to hunt redress in American courts – choices not out there to overseas nationals.

“Each killing is tragic, clearly, particularly illegal killings of civilians, however there are totally different choices out there in US courts when it’s a US nationwide who was killed,” Gissou Nia, a human rights lawyer and director of the Strategic Litigation Venture on the Atlantic Council, informed MEE.

‘Each killing is tragic … however there are totally different choices out there in US courts when it’s a US nationwide who was killed’

– Gissou Nia, human rights lawyer

A type of choices is thru the struggle crimes statute inside Title 18 of the US prison code, which permits for the Division of Justice to carry prices towards the perpetrators of struggle crimes.

“The important thing factor concerning the struggle crime statute is that it permits for what’s known as nationality jurisdiction, that means both the alleged perpetrator is a US nationwide or the sufferer is a US nationwide,” Nia mentioned.

“That is an choice that is out there. We noticed this being mentioned with respect to American journalists who’ve been not too long ago killed or injured in Ukraine by Russian forces.”

Another choice that might be used is the Sufferer Torture Prevention Act of 1991, which permits US residents and non-US residents to file civil lawsuits in alleged instances of torture or extrajudicial killings dedicated in overseas international locations.

This act has been cited in a number of lawsuits over the previous a number of years, together with when Egyptian-American activist Mohamed Soltan sued former Egyptian Prime Minister Hazem el-Beblawi for allegedly being liable for his torture in an Egyptian jail.

Quite a few civilian households have additionally used the act to file lawsuits towards Libyan army commander Khalifa Haftar for allegedly being liable for each the torture and extrajudicial killings of their members of the family in the course of the nation’s civil struggle.

Soltan’s case was thrown out after the US authorities intervened, whereas the litigation in Haftar’s case remains to be ongoing.

In Abu Akleh’s case, Nia mentioned that her loss of life would seemingly fall underneath the class of extrajudicial killing, making a authorized case via this act a viable choice for her household.

Authorized precedents

If Abu Akleh’s household had been to take this case to court docket, it will not be the primary time that the killing of a US journalist could be deliberated over within the American authorized system.

Marie Colvin, an American journalist and struggle correspondent for the Sunday Occasions, was killed in a rocket assault on a makeshift media centre within the rebel-held metropolis of Homs in February 2012.

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Her household lodged a declare towards the Syrian authorities in a court docket in Washington citing the terrorism exception to the International Sovereign Immunities Act, which says {that a} overseas nation on the US state sponsor of terror listing could be sued over the extrajudicial killing of a US nationwide.

In 2019, the court docket dominated that the Syrian authorities needed to pay $300m in damages to Colvin’s household.

Jamal Khashoggi, a US resident and Saudi columnist for Center East Eye and The Washington Put up, was killed in 2018 on the Saudi consulate in Istanbul in a homicide that US intelligence assessed Saudi Crown Prince Mohammed bin Salman was liable for.

A court docket case in Turkey was thrown out earlier this yr, however one lawsuit towards the Saudi authorities over Khashoggi’s killing stays in a US court docket in Washington, though it has but to rule on whether or not the US has jurisdiction over the case.

Nonetheless, Nia famous that each time it involves crimes dedicated overseas, “there’s inevitably a overseas coverage element” that will get in the way in which of looking for accountability.

“Generally, as you noticed within the case of Mohamed Soltan, that may have an effect on what strikes ahead very otherwise from after we’re coping with purely home, prison and civil fits.”