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The ICC Decides to Investigate War Crimes in West Bank and Gaza

The Court could also issue a formal ruling on whether it has jurisdiction to investigate war crimes in the Occupied Territories, thereby removing ambiguity regarding a key Israeli government argument against it.

Analysis | Middle East

As Israel moves toward its third round of elections in less than a year, Prime Minister Benjamin Netanyahu is desperate to find a way to hold on to power. More than vain self-interest motivates him now, as he hopes that being a sitting (and re-confirmed) prime minister will make it impossible for him to be tried, convicted, and eventually jailed for the corrupt dealings with which he has been charged.

Netanyahu was doubtless overjoyed to hear that the International Criminal Court (ICC) in the Hague has decided there was sufficient cause to investigate whether war crimes had been committed by Israel in the West Bank and Gaza Strip over past five and a half years. The announcement provided him with exactly the kind of target he likes best, one that allows him to claim that Israel is being singled out, persecuted, held to an unfair standard, and all because of antisemitism.

That assertion is absurd on its face, and hardly worth examining. Israel’s human rights record is open for all to see, and it’s not pretty. Moreover, the ICC isn’t investigating Israel; it is investigating the conflict in the occupied territories, and that investigation includes all parties involved. That’s just one of several key points that need to be understood regarding the ICC investigation.

Will There Be Real Consequences to the ICC Investigation?

It goes without saying that Israel — which is not a party to the Rome Statute, the agreement that created the ICC and that outlines its powers, rules, and procedures — will ignore any conclusions the ICC reaches. It will be supported in doing so by the United States — which, like Israel, has declared that it has no intention of ratifying the Rome Statute and has been generally uncooperative with the ICC and international legal structures in general.

Yet despite this, Israel reacted very sharply to the announcement of an ICC investigation. One reason for this is that the ICC deals with individual accountability for war crimes. Therefore, Israeli officials could face charges for war crimes, something that has been a concern for Israeli leaders for many years.

But Washington’s protection should be an effective shield against Israeli leaders facing arrest and trial. The bigger concern for Israel is political. While few in Israel or the United States who are not already critics of Israeli policy are likely to change their minds due to an ICC ruling, it could have a greater effect in places, like Europe, where public opinion of Israel is less than uniformly positive. An ICC ruling that designated Israeli war crimes could reinforce the negative perceptions of Israel in many sectors, lending weight to efforts to stop selling arms to Israel, or to the Boycott, Divest and Sanctions (BDS) movement

Why Won’t the ICC Be Investigating Hamas as Well?

Actually, it will. According to Noa Landau in the Israeli daily, Haa’retz, “…the front page of the Yedioth Ahronoth newspaper on Sunday mentioned Hamas, under a headline that said: ‘They are not investigating them.’” But the investigation announced by the ICC is territorially based. It is looking at all the participants in hostilities in the West Bank and Gaza — Israeli and Palestinian — over the past five years.

Announcing the investigation, ICC prosecutor Fatou Bensouda said “I am satisfied that (i) war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip … (ii) potential cases arising from the situation would be admissible; and (iii) there are no substantial reasons to believe that an investigation would not serve the interests of justice.” No specific party was mentioned.

This was something the Palestinian Authority was aware of when it made the referral to the ICC last year. The Court’s ruling last week, which prompted the prosecutor’s announcement, explicitly noted war crimes allegedly committed by all parties, Israeli and Palestinian. Ultimately, this makes sense for the Palestinians on every level. For the PA in particular, its forces may have committed many human rights violations, but over the period of time under investigation there are few, if any, incidents that could be classified as “war crimes,” simply because the PA has not been involved in armed conflict with Israel or anyone else over that period.

Hamas has signaled in the past that it rejects charges of war crimes in its actions against Israel, and, much like Israel, it has routinely refused to cooperate with international investigations. Yet even so, Hamas is aware that they have much less to lose than Israel in the ICC investigations. The sheer scope of destruction Israel is capable of, on top of the fact that Israel’s siege of Gaza is largely responsible for the extreme vulnerability of the people living there, means that Israel will inevitably absorb the lion’s share of the attention in the investigation, as it should. Israel’s greater capabilities also mean a far greater ability to avoid civilian casualties.

Does the ICC Have the Jurisdiction to Investigate These Claims?

Israel contends that, since Palestine has no territory over which it exercises full sovereignty, it is not a sovereign state and thus has no standing at the ICC to refer a case for investigation. The Rome Statute, however, says that a “State Party” to the Statute may refer a case for investigation. Palestine became a State Party to the Rome Statute in 2015, after being granted non-member status in the U.N. General Assembly in 2012. The fact that the Court accepted Palestine as a “State Party” in 2015 would seem, therefore, to grant it the required status. However, because there is no specific regulation in either the U.N. Charter or the Rome Statute that perfectly fits this unusual situation, Palestine’s standing at the ICC is ambiguous enough to allow Israel to make this argument.

Bensouda would seem to have anticipated Israel’s contention and therefore requested that the Court make a formal decision specifically about the ICC’s jurisdiction in the West Bank and Gaza rather than rely on the widespread interpretation of international legal scholars. The fact that an ICC ruling in 2012 — three years before Palestine signed on to the Rome Statute and several months before it received non-member status at the UNGA — stated that Palestine lacked the standing to request an ICC investigation indicates that, now that it has signed on to the statute, the Court is very likely to rule that it has the required jurisdiction.

Bensouda’s decision to get a ruling on the question of jurisdiction has been met with some frustration. Kenneth Roth of Human Rights Watch said that “Palestinian and Israeli victims have faced a wall of impunity for serious violations committed against them for long enough. The prosecutor should have proceeded directly with a formal probe as was within her power to do.”

Roth’s impatience is more than understandable and is undoubtedly felt far more deeply by Palestinians. It has been almost five years since the ICC prosecutor opened a preliminary investigation, and it is only now that the prosecutor has decided that the results of that investigation merited an actual investigation into specific war crimes. The wheels of ICC justice grind absurdly slowly.

But Roth underestimates the importance of the Court making a definitive ruling on its jurisdiction here. When this ruling is made, there will be a specific piece of jurisprudence from the ICC on the Palestinian territories rather than just the overwhelming consensus of international legal scholars based on broad principles of international humanitarian law.

This is a very big deal for the future. This Court is very likely to affirm its jurisdiction, particularly considering the strength of its preliminary ruling.

Of course, shielded by Washington, Israel will almost certainly ignore any judgment against it. Thus, it's not going to matter on the ground immediately. But in terms of international law, the ambiguity will be removed.

That ambiguity has served Israel very well, and it has inflicted serious harm on the Palestinians in places like Europe, where people and governments still consider international law relevant and important. Ambiguity allows people to stay on the sidelines “until the dispute is resolved,” and that has been a condition of which Israel has taken full advantage over the decades. Ending that ambiguity could ultimately prove a game-changer in the 70-plus-year-old conflict. And then we’ll see about war crimes.

The International Criminal Court building in The Hague (source: International Criminal Court)
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