On December 20, 2019, the Office of the Prosecutor at the International Criminal Court said that there is basis to investigate Israel for alleged war crimes in its actions in the West Bank and Gaza.
Israel decried this decision while the Palestinian Authority stated that the time to make Israel accountable for its war crimes and crimes against humanity had arrived.
The realities and difficulties of successfully concluding this investigation however, are many and varied.
In stating that Israel has a case to answer for its actions starting in early 2015, ICC Prosecutor Fatou Bensouda then immediately qualified her comment with the rider that The Hague may not have the jurisdiction to deal with the Israel-Arab conflict and forthwith asked for a ruling by three ICC judges to determine the scope of the court’s territorial jurisdiction.
In fact, The Hague does not have the legal muscle to enforce anything on Israel because though Israel is a signatory to the Rome Statute of 1989, it does recognise the jurisdiction of the ICC, together with America, China, India and others.
Among the most complicated matters of the ICC-Statute both in a legal and political sense is that of its jurisdictional range. Secondly, the problematicity of the ICC document The Elements of Crimes, integrated in 2000, which effectively strips the court of a genuine judicial function i.e. the independent interpretation of legal norms and could lead to differing interpretations of any discrete allegation. And thirdly, the definition of war crimes (for example) is based on a variety of precedents in international law, which calls the legal necessity of the Elements of Crimes into question.
In adjudicating that Israel has a case to answer for war crimes and crimes against humanity, Bensouda then hand-balled to the pre-trial panel of judges the need to determine, per section 1 of the Rome Statute whether Israel and/or its leaders are guilty of criminal acts which could lead to a conviction of a crime against humanity. As the foundational document of the ICC sees it, these crimes include murder, extermination, torture, rape and sexual slavery as well as “other inhumane acts of a similar character” which cause great suffering, or serious injury to body or to mental or physical health.
This panel of judges will need to determine, per article7 (2) of the ICC-Statute, whether these crimes were committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack for the sole purposes of murder, extermination, torture, rape and sexual slavery as well as intent to cause great suffering, or serious injury to body or to mental or physical health.
In examining these issues, the pre-trial panel will need to consider the nexus of armed conflict in Israel’s case. This raises a further problem of interpretation for the judges because even though the ICC interprets as criminal, acts which take place in a territory that is under the control of the state to which the alleged perpetrator belongs and furthermore do not have to be committed in times of armed conflict, it will need to show compliance with its own legal reference article in proving that Israel is guilty of crimes against humanity which took place completely independently of crimes against peace or war crimes.
And a further extremely thorny issue for the pre-trial judges to grapple with prior to bringing Israel to court would be the issue of whether crimes against humanity that Israel is accused of can be committed against military personnel. The wording of crimes against humanity under the ICC’s own Statute indicates that this is not the case, as it speaks solely of an attack against “any civilian population”.
This would then require the judges to show beyond reasonable doubt whether the events of 2015 and after in Gaza (for example) were aimed at the Strip’s civilian population or against the Islamist rulers of that Strip.
With regard to the ICC’s exploratory allegation of war crimes against specific Israeli political and military persons, there will be a need to take into account a preliminary range of factors.
While the ICC pre-supposes the existence of armed conflict in the committing of a war crime, it needs as well to take note of a pre-established precedent where each case has to be analysed on its own merits and where a sufficient nexus must be established between the alleged offence and the armed conflict which gives rise to the applicability of international humanitarian law.
Within this framework, it will be difficult to prosecute the case that any civilian deaths (remember that death of military personnel does not qualify as a crime against humanity even in the context of war) caused by an Israeli response to Hamas violence in Gaza (for example) constitutes a war crime by even the ICC’s most liberal interpretations.
There are reams more to be written on this topic, but as most Israeli legal experts maintain, that with regard to offenses allegedly committed by the IDF during the fighting in Gaza, the question is still open on whether they can be heard in the ICC. That is because the prosecutor is missing information on the processes that took place in Israel in connection with these incidents thus rendering as questionable the court’s authority to hear the case in the first place.
With regards to the West Bank, there is a mass of historical record, treaties and UN Resolutions dating back to San Remo and ending with Oslo II which have successfully argued and will continue to argue that Israel is not an occupier in the West Bank and that no legal ruling can/will take the place of final outcome negotiations between Israel and the “Palestinians”. For that reason there is no need to, here, go any further down that track.
The legal obstacles before the pre-trial judges are significant. It is true that it was dragged into it by the Palestinians. Frustrated with the lack of progress in the peace process, Ramallah viewed The Hague as a convenient arena to score potent points against Israel.
And while Israel does not recognise the ICC’s jurisdiction, a “guilty” verdict (years down the track) may have deleterious consequences for particular Israelis wanting to travel abroad.
On the other hand, given the clearly political nature ( and ironic Hanukkah celebration timing) of ICC announcement, it is entirely possible that many more countries will refuse to comply with any ICC arrest warrants and/or requests for extradition of targeted Israelis if it came to that.
Fatou Bensouda and the International Criminal Court have to establish guilt that Israel and its politicomiltary leadership
- intentionally launched at least three disproportionate attacks in Gaza
- willfully killed and willfully caused serious injuries in Gaza and that it
- intentionally attacked Red Cross personnel or institutions in Gaza
as well as committing a “war crime” through its alleged contravention of paragraph 8(2)(b)(viii) of the Rome Statute, which designates the “transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” as such.
Given that Bensouda acknowledges that Israel’s judiciary has properly investigated allegations of wrongdoing by its soldiers, given that the ICC can only open proceedings if a country’s government fails to properly investigate such allegations and given that Israeli Attorney General Mandelbilt has published a substantial legal opinion citing the non-existence of a sovereign “Palestinian” state which thus cannot legally delegate to the court criminal jurisdiction over its territory and nationals, it may well be that, as Ahren (December 23, 2019) has succinctly put it “the ICC brouhaha could end in a few months with the court deciding that it doesn’t have the jurisdiction to deal with the Israeli-Palestinian (sic) conflict, and simply closing the case.”
A significant development against Israel for Hanukkah 2019 it is true, but only one of a long line of ‘significant developments’ that Jews and Israel have successfully overcome as a people and a nation over 3,000 years of existence.
Chag Hanukkah sameach.