In a groundbreaking ruling, a three-judge ICC court has found that the chief prosecutor may commence a war crimes investigation against both Israeli and Palestinian leaders for major violations of international law. They include: building settlements, the murder of Palestinian civilians during Operation Protective Edge and the Great March of Return, and Palestinian rocket attacks against Israeli civilians populations. The ICC prosecutor had asked the judicial panel whether she had jurisdiction over the case given that Israel is not a signatory of the Rome Statute, which established the organization; and that the Palestinian Authority (PA), which is a signatory, is not universally recognized as a nation state.
By a 2-1 vote, the judges found that the international body did have jurisdiction because the PA did fit the proper definition of a nation state. This throws the ball into the chief prosecutor’s court. However, her appointment ends in June and signatory states will vote on a new individual to take on this role. Though the case could not be abandoned, s/he has discretion as to how it is pursued. The U.S. and Israel will try to martial their allies to appoint a prosecutor who would be less inclined to pursue the investigation vigorously. It is incumbent on voting states to elect a candidate who will pursue the investigation and any potential prosecution vigorously.
This multi-tweet account by an international law expert describes the procedures that will follow from today’s ruling.
Israel, of course, screamed bloody murder at the result. It’s UN ambassador, Gilad Erdan called the ruling “anti-Semitic” because it singled Israel out for criticism. This of course, perfectly fits the IHRA definition of anti-Semitism, and points to why it is so problematic.
Another argument used against ICC involvement is the claim that Israel upholds the rule of law via its court system, which is empowered to investigate such matters. Under the Rome Statute, the ICC may only take up an investigation if the judiciary of the nation accused refuses to address the accusations. While Israel has prosecuted a handful of individual soldiers for specific crimes like looting, its legal system has refused to consider the culpability of higher level officers for far more serious breaches. Thus, despite such claims, the Israeli court system has refused to investigate or hold anyone accountable for the violations alleged.
Israel has so far refused to cooperate with the International Court, claiming it does not recognize its jurisdiction. Instead, it has relied on the U.S. to run interference on its behalf. The Trump administration not only denounced the investigation, it placed all the major officials of the agency under U.S. sanctions. The new Biden administration is reviewing this decision and likely to undo it. However, the U.S. remains outside the ICC. The State Department has professed its displeasure at the ruling. As an outsider, we do not wield the sort of influence we might in weighing in on Israel’s behalf. But Biden will certainly make U.S. views known and seek to exert what influence it can.
We are still quite a ways away from a trial and even farther away from a conviction. But there can be no doubt that today’s ruling was a milestone on a path toward accountability for Israel’s war crimes.
Finally, the ICC does not prosecute nation states, but rather individuals. So it’s likely that figures like Netanyahu, Benny Gantz (then IDF chief of staff), and the leaders of Hamas and/or Islamic Jihad would be the targets of such an investigation.
Several years ago, the ICC also considered opening an investigation against Israel for its attack on the Mavi Marmara. The Court declined to pursue one. The judge who voted against doing so is the same Hungarian judge who voted No in the current case. An international law expert I consulted told me that he believed she had determined that this current case was the stronger one, and that it would be better to drop any investigation of the 2010 incident, in which 10 Turkish citizens were murdered by IDF commandos.