The International Criminal Court chief prosecutor, Fatou Bensouda, announced last week that she planned to open a full-fledged investigation of Israeli leaders (and Palestinian militias) for war crimes during the 2014 Operation Protective Edge. Several months ago, the ICC issued a preliminary request for Israel and Palestinian NGOs to amass evidence that could be used in a prospective future investigation.
Bensouda included allegations of Israeli violations of international law in the West Bank, Gaza and East Jerusalem. That includes the building of settlements, theft of Palestinian lands, evictions and ethnic cleansing in East Jerusalem, the Great March of Return murders, and the Israeli plan to annex the Jordan Valley.
This could be a major breakthrough that many in the international human rights community have fought for over decades. Israel’s Channel 12 called it “the most significant legal battle the State of Israel has faced since its founding.” Or it could be yet another flash in the pan leading to further disappointment and lost opportunities for the Palestinian cause.
Both Israel, Palestinian, and foreign NGOs have been documenting Israeli war crimes for decades. Some of the Israeli NGOs even gave testimony to the Goldstone UN commission investigating the Operation Cast Lead 2009 massacre, for which they were accused of being traitors to the nation. Many of us hope that the painstaking work undertaken by all of them will finally give Palestine its day in court, and put Israel in the dock at The Hague.
But the track record of international justice is spotty at best. It has brought war criminals like Milosevic and Karadzic to justice. But it has not been as successful with its African prosecutions. Uhuru Kenyatta simply refused to cooperate with the Court and the latter was forced to drop charges against him. The leading architects of the Congolese genocide–which has killed 4-million people over the past few decades–including Rwanda’s Paul Kagame, have never faced their genocidal crimes. Sudan’s former dictator, Omar Bashir, roamed around the world with an arrest warrant hanging over his head. Nations simply refused to arrest him. The ICC never touched him. And in countries like Sri Lanka, the UN Security Council has refused to refer a case to the Court against the ruling Sinhalese generals who committed genocide against the Tamil minority. Bensouda has even refused multiple times to pursue charges against Israel for its massacre of 10 civilians aboard the Mavi Marmara in 2010. She did so despite clear direction from a judicial committee which several times rejected her plan to close the case.
While it is possible she turned down the Mavi Marmara investigation because she felt the charges in the Gaza massacre case were stronger; it could be that she will eventually refuse to pursue charges against Israelis for their roles in these crimes. It is a crapshoot. We can hope the outcome is positive for the role of international law in holding nations like Israel accountable.
Israel’s Channel 12 reports (Hebrew) that officials in the government are afraid that its military, intelligence and political leadership will become wanted in every one of the 100-plus countries which are signatories of the ICC convention. That would virtually close down opportunities for the IDF chief of staff, intelligence chiefs, and defense and prime ministers to travel abroad. It would mean no more photo opportunities for Netanyahu in European capitals after anti-Semitic attacks. Even lower-level officers could conceivably be arrested, while on holiday or business travel.
It would mean that not only Netanyahu, but his current political rival, Benny Gantz (who was chief of staff during Protective Edge), and Avigdor Lieberman would have international arrest warrants. More recent defense ministers Bogie Yaalon and Naftali Bennett could also find themselves in the dock. This has never happened in the history of Israel. And while Israelis like to thumb their noses at international bodies like the UN, claiming they are biased against Israel or anti-Semitic, they have never had to face this level of opprobrium in the world.
Perhaps the first sign of an official response indicating Israel is feeling the heat from the announcement is this comment from the foreign minister saying that the State has backed off expelling the Bedouins from their homes in Khan al Amar because it would be seen “as the last straw” by the ICC. The second may be a halt in plans to annex the Jordan Valley, which was blessed by Pres. Trump. A news report says that the committee planning the annexation has cancelled its first meeting for fear that the plan could be further evidence used against Israel. Bensouda specifically mentioned the annexation as a major issue that would figure in the war crimes investigation.
It’s ironic that the response of Netanyahu’s political rivals has been to double-down and taunt him for cowering before the international body, instead of being a ‘real Zionist’ and defying them with impunity. This is chest-thumping by those jockeying for position should Netanyahu be overthrown before the next election. They’re posturing to see who can take the most brutal line toward the Bedouin and Jordan Valley Palestinians, and score political points as a result.
Israel claims that the Court has no jurisdiction in the case because it is not an ICC member state. However, the PA did join as a sovereign state, so the Court does have jurisdiction over the entity called Palestine. The key question is how will the Court parse issues of sovereignty in terms of deciding jurisdiction? It seems clear that if the ICC is investigating violations of international law involving Israel declaring sovereignty over Palestinian lands, that the Court would reject the notion that Israel is the sovereign power in the West Bank, Gaza, and East Jerusalem. That would mean that it does have jurisdiction.
Israel will no doubt rebut Bensouda’s plan by claiming that its courts and army have arrested and charged individual soldiers for crimes committed in the 2014 massacre. That too is a laughable response: a single soldier was convicted of looting a home in Gaza. A senior IDF officer was investigated under charges that his unit committed atrocities. The military found in his favor. That is not a proper judicial review of war crimes charges. Not to mention that no one in the political or intelligence echelon was investigated or charged under Israeli law. Even a national commission investigating Operation Protective Edge recommended only the single charge mentioned above be brought against the IDF commander. This is not justice. It is a sham.
Israel will also claim that any ICC investigation will conflict with diplomatic efforts to resolve the territorial dispute between Israel and the Palestinians. Its argument will be that any ruling against Israel might harm its status and prejudge its claims in such negotiations. This too is laughable, since there is no peace process, nor any negotiation to resolve the conflict.
Israel says that there can be no investigation because only states can bring ICC cases and the PA is not a state and does not represent one. This, in fact, is false since for jurisdictional purposes, the PA has been recognized since 2015 as a signatory and member of the ICC. Further, the only reason Palestine is not yet formally a state (though it has been recognized as such by dozens of countries) is that Israel has adamantly refused to permit it. That too should be part of the charge against Israel: it cannot both refuse a Palestinian state, while claiming either it has jurisdiction over what the world calls Palestine or no one does.
The Attorney General released an amazingly self-serving legal opinion defending the State’s refusal to recognize the ICC:
“The State of Israel is a democratic state based on law. It considers itself obligated under international law and respects it along with humanitarian values. These obligations have stood strong for decades [and remain so today] despite all the challenges and difficult times it has faced. It is rooted in the character and values of the State of Israel and guaranteed by a strong, independent judicial system whose honor precedes it in the world.”
He further added that the ICC was wasting its time in investigating Israel since it was meant to investigate “states in which the rule of law had collapsed.” He had in mind states like Rwanda, the Congo, Sudan, Kenya, etc. The irony being, that Israel indeed has proven itself, despite its vaunted legal system, unable to hold its leaders accountable for their criminal behavior. That is precisely the scenario envisioned under international law for an intervention.
Commanders of Palestinian militias like Hamas and Islamic Jihad will also fall under this investigation for their firing of rockets into Israeli civilian areas. These attacks have killed two-dozen or so Israelis over the past two decades and wounded an even larger number.
It is indicative of the torpor of the Israeli left that no liberal political leader (not even Israeli-Palestinian MKs) has made any statement about Bensouda’s announcement (though the Israeli-Palestinian legal rights NGO, Adalah, praised it and bravely offered to present evidence to investigators). They are cowed into submission. They know the moment they raise their heads above the parapet, the far-right will take aim and fire (perhaps even literally). They will surely remember what happened to Yitzhak Rabin when he had the ‘temerity’ to sign the Oslo Accords and paid for it with his life. Many of the same bullies (aka “leaders”) who incited Rabin’s murder will do the same to any Israeli Party or NGO which speaks positively of the war crimes investigation.
B’Tselem, one of the country’s leading human rights groups, tweeted: “Current reality obligates the Court to open such an investigation. Israel’s legal acrobatics, in an effort to whitewash its crimes, convince no one.”
Israeli far-right ministers like Bezalel Smotrich (who himself was once accused of plotting a terror attack by the Shin Bet) have demanded that his government issue the ICC an ultimatum that the case be closed or Israel will dismantle the PA. To which I’d reply: you go right ahead. As soon as you do, then the West Bank becomes Israel’s headache. While it might treat it as badly as it treats the besieged Gaza, the world would presumably have something to say against Israeli rule over the West Bank’s 2-million Palestinians.
Bensouda has, unfortunately, punted on the jurisdiction issue. She has referred it to a pre-trial panel which will rule. So yet again, we will have to depend on the kindness of another set of strangers for Palestine to see justice.
Israel has defiantly announced it will not cooperate with the ICC at any level. But it has not yet ruled out permitting non-governmental proxies to represent it. One NGO in particular mentioned as a possible representative was the Mossad-financed lawfare group, Shurat HaDin. It also plans to turn to sympathetic right-wing European governments like Britain and others to pressure the ICC against pursuing its plan. It is desperate to avoid being compared to previous dodgy states which came under scrutiny of the Court, like those mentioned above.
H/t to Prof. Kevin Jon Heller for helping me navigate some of the shoals of international law and the Court’s processes. Any mistakes that remain here are mine, not his.
Silverstein has published Tikun Olam since 2003, It exposes the secrets of the Israeli national security state. He lives in Seattle, but his heart is in the east. He publishes regularly at Middle East Eye, the New Arab, and Jacobin Magazine. His work has also appeared in Al Jazeera English, The Nation, Truthout and other outlets.