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As Israel rejects the ICC investigation, what are the possible scenarios?

April 12, 2021 at 9:44 am

International Criminal Court’s prosecutor Fatou Bensouda (L) shakes hands in the courtroom of the International Criminal Court (ICC) in The Hague, The Netherlands, on July 8, 2019 [EVA PLEVIER/AFP via Getty Images]

The Israeli government’s position regarding an impending investigation by the International Criminal Court over alleged war crimes committed in occupied Palestine has finally been declared by Israeli Prime Minister Benjamin Netanyahu. “It will be made clear that Israel is a country with rule of law that knows how to investigate itself,” he said on 8 April. As a result, he added, Israel “completely rejects” any accusations that it has committed war crimes.

However, it won’t be so easy for Tel Aviv this time around. True, Israel is not a party to the Rome Statute, according to which the ICC was established, but it can still be held accountable, because the State of Palestine is a member of the ICC, having joined in 2015. Moreover, the war crimes under investigation are alleged to have taken place on Palestinian soil. This grants the ICC direct jurisdiction, even if war crimes were committed by a non-ICC party. Still, accountability for these war crimes is not guaranteed.

To understand what might happen next, it is important to put the investigations into context. On 22 March, the Palestinian Ambassador to the United Nations, Riyad Mansour, declared that, “The time has come to stop Israel’s blatant impunity.” His remarks were included in a letter sent to UN Secretary-General Antonio Guterres and other top officials at the international organisation.

It is modest — albeit cautious — optimism among Palestinians that Israeli officials could potentially be held accountable for war crimes and other human rights violations in Palestine. The reason for this optimism is the simple fact that the ICC has decided to pursue its investigation into alleged war crimes committed in the occupied Palestinian territories.

Mansour’s letter was written with this in mind. Other Palestinian officials, such as Foreign Minister Riyad Al-Maliki, are also pushing in this direction. He too wants to see an end to Israel’s lack of accountability.

Until Netanyahu made his official position clear, the Israeli response was predictable. On 20 March, for example, the Israeli authorities decided to revoke Al-Maliki’s special travel permit in order to prevent him from pursuing any diplomatic moves that aim to ensure the continuation of the ICC investigation. Al-Maliki had, in fact, just returned from a trip to The Hague, where the ICC is based.

READ: Israel bans Palestine FM from travel after visit to ICC

Furthermore, Israel is openly attempting to intimidate the Palestinian Authority in Ramallah to discontinue its cooperation with the ICC. The official Israeli discourse makes this clear. “The Palestinian leadership has to understand there are consequences for their actions,” an Israeli official told the Jerusalem Post on 21 March.

Despite years of legal haggling and intense pressure on the ICC’s outgoing Chief Prosecutor, Fatou Bensouda, to scrap the investigation altogether, the legal moves have proceeded, unhindered. The pressure was displayed in various forms: direct defamation by Israel, as in accusing the ICC of anti-Semitism; unprecedented American sanctions imposed on ICC officials; and constant meddling and intervention on Israel’s behalf by member states that are part of the ICC, and are described as amici curiae (“friends of the court”).

Such pressure did not succeed. On 30 April last year, Bensouda consulted with the Court’s Pre-trial Chamber to see if the ICC has jurisdiction over the matter. Ten months later, the Chamber answered in the affirmative. Subsequently, the Prosecutor decided to open the investigation formally.

On 9 March, a spokesman for the Court revealed that, in accordance with Article 18 of the Rome Statute, notification letters were sent by the Prosecutor’s office to “all parties concerned”, including the Israeli government and the Palestinian leadership, notifying them of the war crimes probe and allowing them only one month to seek deferral of the investigation.

ICC ruling brings hope for Palestine, dismay for Israel - Cartoon [Sabaaneh/MiddleEastMonitor]

ICC ruling brings hope for Palestine, dismay for Israel – Cartoon [Sabaaneh/MiddleEastMonitor]

Predictably, Israel remains defiant. However, unlike its obstinacy in response to previous international attempts to investigate alleged war crimes in Palestine, the colonial state’s response this time appears confused and uncertain. On the one hand, Israeli media revealed last July that Netanyahu’s government has prepared a long list of likely Israeli suspects, whose conduct could potentially be investigated by the ICC. Officially, though, the response can only be described as dismissive, insisting that Israel will not, in any way, cooperate with ICC investigators.

Although the Israeli government continues to maintain its position that the ICC has no jurisdiction over Israel and occupied Palestine, senior Israeli officials and diplomats are moving quickly to block what now seems to be an imminent probe. For example, President Reuven Rivlin used an official visit to Germany last month to thank his German counterpart, Frank-Walter Steinmeier, for opposing the ICC’s investigation of Israeli officials.

After lashing out at the Palestinian leadership for attempting to “legalise” the conflict through an international investigation, Rivlin renewed Israel’s “trust that our European friends will stand by us in the important fight on the misuse of the International Criminal Court against our soldiers and civilians.”

Previous Israeli war crimes which have seen attempts to instigate investigations include the 2002 Jenin massacre in the occupied West Bank and several Israeli military offensives against the people of the Gaza Strip since 2008-09. The forthcoming ICC investigation will be different, though, in that it will target individuals, not states, and can issue arrest warrants, making it legally incumbent on all other ICC members to enforce the Court’s decisions.

Standing in front of posters showing the victims of the Jenin refugee camp massacre in 2002 by Israeli troops [SAIF DAHLAH/AFP via Getty Images]

Standing in front of posters showing the victims of the Jenin refugee camp massacre in 2002 by Israeli troops [SAIF DAHLAH/AFP via Getty Images]

What are the possible future scenarios to be considered? If the investigation carries on as planned, the Prosecutor’s next step would be to identify suspects and alleged perpetrators of war crimes. Dr Triestino Mariniello, a member of the legal team that represents the Gaza victims of such alleged crimes, told me that once these suspects have been determined, “The Prosecutor will ask the Pre-trial chamber to issue either arrest warrants or subpoenas, at least in relation to the crimes already included in the investigation so far.”

These alleged war crimes already include Israel’s illegal Jewish settlements across the occupied territories; the Israeli war against the Palestinians in the Gaza Strip in 2014; and Israel’s targeting of unarmed civilian protesters during Gaza’s Great March of Return protests from March 2018 onwards.

Ideally, the Court could potentially widen the scope of the investigation, which is a major demand by the representatives of the Palestinian victims. “We expect more crimes to be included,” explained Mariniello, “especially apartheid as a crime against humanity, as well as crimes against Palestinian prisoners by the Israeli authorities, especially torture.”

In essence, this means that, even after the investigation is officially underway, the Palestine legal team can continue its advocacy to expand the scope of the investigation and cover as much legal ground as possible.

However, experience has shown that the ideal of seeing Israel investigated for war crimes has rarely transpired. A less than ideal scenario would thus be for the scope of the investigation to remain narrow.

In a recent interview with former UN Special Rapporteur on the situation of human rights in the Occupied Palestinian Territories Professor Richard Falk, he told me that even if the narrow scope remains in effect — thus reducing the chances of all victims seeing justice — the investigation is still a “breakthrough”. The reason why the investigation may not be broadened has less to do with justice and much to do with politics. “The scope of the investigation is something that is ill-defined, so it is a matter of political discretion,” explained Falk. “The Court takes a position that needs to be cautious about delimiting its jurisdiction and, therefore, it tries to narrow the scope of what it is prepared to investigate.”

He does not agree with that view but, according to the seasoned international law expert, “It does represent the fact that the ICC, like the UN itself, is subject to immense geopolitical pressure. [Nevertheless], it’s a breakthrough even to consider the investigation, let alone the indictment and the prosecution of either Israelis or Americans that was put on the agenda of the ICC, which led to a pushback by these governments.”

While the above two scenarios are suitable for the Palestinians, they are a non-starter as far as the Israeli government is concerned, as indicated in Netanyahu’s recent statement rejecting the investigation altogether. According to some pro-Israeli international law experts, though, Netanyahu’s decision could represent a missed opportunity.

Writing in Haaretz, international law expert Nick Kaufman advised Israel to cooperate, albeit only for the sake of obtaining a “deferral” from the Court, and then use the ensuing delay for political manoeuvring.

READ: Israel looks to delay ICC probes into its crimes

“It would be unfortunate for Israel to miss the opportunity of deferral which could provide the ideal excuse for reinitiating peace talks with the Palestinians,” wrote Kaufman. “If Israel squanders such an opportunity it should come as no surprise if, at a later date, the Court will hint that the government has no one but itself to blame for the export of the judicial process to The Hague.”

There are other scenarios, such as even more intense pressures on the Court as a result of ongoing discussions between Israel and its benefactors, whether in Washington or among the amici curiae at the Court itself.

At the same time, while Palestinians remain cautious about the future of the investigation, there is hope that, this time around, things may be different and that Israeli war criminals will eventually be held accountable for their crimes. Time will tell.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.