Analysis / ICC Inquiry Is a Game Changer for Israel

The International Criminal Court will consider four issues in examining whether Israel has a case to answer for its actions in the Palestinian territories.

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“The same court that after more than 200,000 deaths in Syria didn’t see a reason to intervene there, in Libya, or in other places, finds it necessary to ‘examine’ the most moral army in the world.” That was the response of Foreign Minister Avigdor Lieberman to last Friday’s announcement by the Prosecutor of the International Criminal Court, Fatou Bensouda, that they would be opening a preliminary examination of the situation in Palestine.

Given that the ICC in 2011 issued arrest warrants for Saif al-Islam Gadhafi, the son of the deposed Libyan leader, and Libyan intelligence chief Abdullah Senussi, Lieberman is either exhibiting woeful ignorance or not telling the truth.

With regard to Syria, it would behoove the foreign minister to learn the rules of the ICC’s jurisdiction, which can stem from one of three instances: A country where crimes were allegedly committed joins the court or consents to jurisdiction; a country whose citizens allegedly committed the crimes joins the court or agrees to a judgment; or a case is referred by the United Nations Security Council.

While the Security Council referred the case of Libya to the ICC, it did not do so in Syria’s case, which is why the court has no jurisdiction to intervene.

In the Israeli-Palestinian case, jurisdiction stems from the consent to judgment by a state in which the crimes were allegedly committed – Palestine. (While Israel doesn’t recognize it, a state by that name is recognized by international institutions.)

The decision on Palestine’s status by Bensouda is significantly different than that of her predecessor in April 2012. The previous prosecutor, Luis Moreno-Ocampo, thought there were doubts as to whether Palestine was a state, and noted, inter alia, the importance of the United Nations’ position on this point.

Recognition of Palestinian state

From the moment in November 2012 that the UN General Assembly recognized Palestine as a non-member state (its previous status was non-state observer), it was clear that the current prosecutor would have difficulty not accepting Palestine as a state, and it is now recognized as the 123rd state to join the court.

The UN secretary-general, the president of the ICC Assembly of States Parties and the court registrar have all recognized the Palestinian affiliation, and so did the prosecutor. Now the gap between the Israeli and international stance is becoming eminently clear.

Palestine cannot be accepted as a UN member state because that requires the recommendation of the Security Council – which the United States would veto. But there’s no such veto in the General Assembly, and the ICC is not a UN body; nor is it subordinate to the Security Council. The General Assembly and the ICC have proven to be effective mechanisms to bypass the hegemony, fortified by their veto, the Americans have in the Security Council. According to the ICC constitution, however, the Security Council may ask that the court not deal with a specific issue for 12 months, and to renew such a request.

It should be noted that the ICC prosecutor is in the midst of conducting preliminary examinations against numerous countries. These include claims of torture by British security forces in Iraq and by U.S. security forces in Afghanistan. There is an examination of Russia over alleged crimes committed in Georgia. One can, of course, doubt whether the prosecutor will ultimately want to start up with those countries, but it’s clear that at this stage, Israel is hardly exceptional.

What will Bensouda consider during her inquiry? First would be whether the court indeed has jurisdiction, which seems to be the case since Palestine is a recognized state that has consented to a judgment.

Genuine investigation

The second would be the principle of complementarity, which means the court will not deal with the matter if a relevant state is conducting a genuine investigation of the issue. In this context, assessing the objectivity of the investigations Israel is conducting into the harm done to Gazan civilians during Operation Protective Edge last summer will be critical: Only an independent investigation – not one being done to shield Israelis from prosecution in The Hague – will be considered genuine.

Also, while the complementarity issue is relevant to investigating Protective Edge, it isn’t relevant to another alleged crime the prosecutor may examine: that of transfer of part of the civilian population into occupied territory. Since the settlements are government policy, it’s clear that complementarity won’t apply there.

The third consideration is the gravity of the events. This is why the ICC prosecutor closed the investigation into the killing of civilians on the Gaza-bound aid flotilla in 2010, a case that reached the ICC because the Mavi Marmara ship, where the 10 deaths occurred, was registered in the Comoro Islands, which referred the case to the court.

The picture is different, of course, with regard to Palestine, which will bring much broader issues to the court’s attention.

The fourth and final issue is whether considerations of justice justify continuing the investigation. This allows the prosecutor to take into account the positions of the victims, international organizations, and more – although the prosecutor’s office has clarified in the past that only in extraordinary circumstances would considerations of justice lead to the closing of a case.

In any event, examining all four considerations is likely to take a long time.

If, after examining all these considerations, the prosecutor thinks there are grounds to move forward, she will then have to examine whether there is a reasonable basis for concluding that crimes were committed. If there is such a basis, the real investigation will begin.

Such an investigation might be conducted both against Israelis – regarding civilian casualties in Gaza and in connection to the settlements – but also against Palestinians responsible for attacks on Israeli civilians.

Even if charges are filed against Israelis, they could not actually be tried unless they were extradited to the court, the chances of which are extremely small.

However, there is no doubt that the rules of the game have changed. Israelis and Palestinians alike are coming, for the first time, under the jurisdiction of an international criminal tribunal. If the foreign minister is surprised, it’s probably because he hasn’t yet internalized that Israel’s legal stance regarding a variety of issues is very far from the internationally accepted positions.