BICOM

What happened: On Friday, the International Criminal Court’s (ICC) three-member Pre-Trial Chamber voted 2-1 that the court has jurisdiction over possible crimes committed in the West Bank, Gaza Strip and East Jerusalem.

• The decision allows the prosecutor to pursue allegations of war crimes by Israel, Hamas and the Palestinian Authority (PA).
• Israel’s Security Cabinet met yesterday and completely rejected the “scandalous decision” of the court. The Cabinet “determines that the court has no authority to make such a decision. Israel is not a member of the international court and the Palestinian Authority does not have the status of a state”.
• The Cabinet added: “Even as it allows the investigation of Israel, the only democracy in the Middle East that is committed to the rule of law, the court shuts its eyes to the awful war crimes being perpetrated time and again by dark dictatorships such as Iran and Syria.”
• “The claim that Jews living in their homeland and their capital of Jerusalem constitutes a war crime is scandalous. Also, the claim that the IDF – there is no more ethical army – is carrying out war crimes even as it protects us from terrorists that launch rockets at our cities – is no less scandalous.”
• Leader of the Opposition Yair Lapid said the court’s decision “is a disgrace that will serve to deepen the conflict and to encourage Palestinian rejectionism. Israel won’t allow any international court to judge our soldiers”.
• US State Department Spokesperson Ned Price said that the US had “serious concerns” about the decision and was looking into its ramifications. He said the Biden administration did not believe the ICC had jurisdiction and that the Palestinians could not be considered a party to the Rome Statute. “As we made clear when the Palestinians purported to join the Rome Statute in 2015, we do not believe the Palestinians qualify as a sovereign state, and therefore are not qualified to obtain membership as a state, or participate as a state in international organisations, entities or conferences, including the ICC. We have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. The US has always taken the position that the court’s jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council.”
• PA Prime Minister Mohammed Shtayyeh praised the decision, saying: “This is a victory for justice and humanity and the blood of the victims and their families.”
• The three-judge panel clarified that their ruling was solely about the court’s jurisdiction and should not be interpreted as recognition of Palestinian statehood.

Context: In December 2019, following a five-year preliminary examination of the “situation in Palestine,” ICC Chief Prosecutor Fatou Bensouda determined that the court should investigate alleged Israeli and Palestinian war crimes as well as Israeli settlement building. The examination focused on potential crimes during Operation Protective Edge, building and expanding Israeli settlements in the West Bank, and the so-called ‘Great March of Return’ violent demonstrations / riots along the Gaza border in 2018-19.

• As part of her decision, Bensouda requested from the Pre-Trial Chamber a jurisdictional ruling on the scope of the territorial jurisdiction of the court. The decision was made on the grounds that the State of Palestine is a signatory of the Rome Statute.
• Israel places great emphasis on its judicial system. It has independent investigative bodies and an independent judiciary.  The Supreme Court maintains judicial oversight over the actions taken in the territories. Given the Supreme Court’s international credibility and prestige, the hope was that it would shield Israel from any ICC investigation.
• According to Professor Yuval Shani of the Israel Democracy Institute: “We still have a lot of time before any investigations ripen into indictments against specific individuals and arrest warrants. The prosecution in The Hague will have to formulate a position before then on the question of whether the IDF’s investigations are sufficient to prevent soldiers from being prosecuted.”
• Professor Shani added: “In a similar issue, pertaining to allegations as if British soldiers had committed war crimes in Iraq — the court recently set very low standards for adequate investigation, which is something that increases the chances that the military investigations regarding Operation Protective Edge will block legal proceedings against IDF soldiers in connection to that operation.”
• Ben-Dror Yemini highlights the hypocrisy writing in Yediot Ahronot: “On one side is a sovereign state that is trying to defend itself and its citizens. On the other side is an entity that supports murdering Jews, which knowingly commits war crimes, such as deliberately targeting civilians, and using women and children as human shields, and there is another entity that transfers NIS 1.3 billion a year, seven percent of its budget, to bankroll Jew-murdering terrorists and family members of terrorists who were killed in their operations against Israel.“
• He further notes, “Exactly two months ago, on December 9, 2020, Fatou Bensouda, the ICC chief prosecutor, decided that Britain had committed war crimes in Iraq in the years 2003-2009. The decision, 184 pages long, details the alleged crimes. But the bottom line is that there will be no investigation because it was not proven that Britain had given the perpetrators immunity. This is interesting because the law enforcement mechanisms in Britain are excessively lenient toward the criminals. For example, the indictment against a group of soldiers for abusing prisoners, which caused the death of one of them, ended with 12 months’ imprisonment for only one soldier. But European countries fund organisations in Israel that collect dubious ‘testimony’ about war crimes committed by Israeli soldiers.”
• At this stage, the Pre-Trial Chamber’s decision remains restricted to the realm of reputational damage for Israel.

Looking ahead: The decision now allows Prosecutor Fatou Bensouda to begin legal proceedings that could lead to criminal charges and even international arrest warrants against senior Israeli political and security officials.

• However, Bensouda completes her nine-year term on June 15, and her successor has not yet been selected.
• Former ICC chief prosecutor Luis Moreno Ocampo told Israel Hayom this morning, “The investigation will continue for a year and half, so that there is a year to take advantage of this conflict and turn it into something positive.”
• With these investigations taking months if not years, it may be Bensouda’s successor who will decide how to proceed with this case.
• BICOM will soon be publishing a full analysis on this subject.