Israelis could be indicted by the new International Criminal Court (ICC) starting next month, when the court is formally inaugurated, Attorney General Elyakim Rubinstein warned at a meeting of the Knesset Constitution Committee Tuesday.
Among other items, Rubinstein said, the court could decide to try Jewish settlers who move to the territories after June 30, since one article of the treaty establishing the court defines the settlements as a war crime (the June 30 cutoff stems from the fact that the court has jurisdiction only over acts committed after its inauguration on July 1). It could also indict Israel Defense Forces soldiers and officers involved in operations like the one in Jenin during Operation Defensive Shield.
Overall, Rubinstein stressed, "I have faith in the 'purity of arms' of IDF soldiers'," and in cases where soldiers were found to have violated orders, they have been put on trial )according to the ICC treaty, the court cannot indict anyone who has already been subjected to genuine legal proceedings in his home country). Since the start of the intifada in September 2000, 140 soldiers have been investigated for crimes such as looting, and some have been indicted, he said.
"[But] the international court is a great unknown for us," he said. "We don't know who the judges will be or who the prosecutors will be. We don't know what it will mean for the Jewish settlements in Judea, Samaria and Gaza or for the neighborhoods of Jerusalem that were set up over the Green Line following the Six-Day War."
Rubinstein noted that Israel never ratified the ICC treaty not, he stressed, because Israel has anything to hide, but out of fear that the court would be guided by political rather than strictly legal considerations. The decision not to ratify will reduce the danger represented by the court, but will not eliminate it entirely, he said.
Deputy Attorney General Rachel Sukar explained that had Israel ratified the treaty, it would be obliged to assist the court by, for instance, handing over any documents it requested. But non-ratification does not provide immunity from prosecution by the court.
The court also does not recognize diplomatic immunity, so even a sitting prime minister could be indicted, she said.
Professor Ruth Lapidoth, an expert in international law, said that based on the list of candidates for seats on the ICC's bench, Israel cannot be confident that the court's judges will rule in a fair and unbiased manner.
State Prosecutor Edna Arbel said the establishment of the court obligates the state to get ready to provide legal representation for any soldier indicted by the ICC for having faithfully executed the government's orders in the territories. The Justice Ministry has set up a special task force headed by Sukar to prepare for the court's inauguration, and the team will include representatives of the Foreign Ministry and the Judge Advocate General's Office.
But Alan Baker, the Foreign Ministry's legal adviser, warned against creating unnecessary panic over the court. Even though it is being inaugurated on July 1, it will actually begin working only in about a year, he said.
Committee Chairman Ophir Pines-Paz (Labor) said the new situation created by the ICC's establishment requires Israel to change its policy regarding the settlements in order to avoid becoming embroiled in legal and political problems.
MK Shaul Yahalom (National Religious Party) suggested that the Justice Ministry set up a database of complaints against terrorists who have murdered innocent civilians and transfer them to the court. For instance, he said, the ICC should be asked to indict Tanzim leader Marwan Barghouti. These complaints, said Yahalom, could serve as an acid test for determining whether the court is objective or politically biased.
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