Israel Is Indirectly Cooperating With The Hague’s Probe Into 2014 Gaza War Despite Past Criticism

International Criminal Court's criminal investigation into Israel’s actions in the Strip could lead to a wave of lawsuits against those involved and even to their arrest abroad

Palestinians amid the rubble of Israeli strikes in the Shujaiyeh neighborhood of Gaza City, 2014.
Adel Hana / AP

Over the last few months Israel has been transferring material to the International Criminal Court in The Hague, which is examining whether war crimes were committed in the Gaza Strip. According to defense sources, the material relates to events that took place during Operation Protective Edge, the 2014 Israel-Gaza war. The ICC is also looking into the demonstrations along the Gaza border fence that began on March 30.

In the past, Israel sharply criticized the court, saying that it had no authority to discuss the Israeli-Palestinian conflict. However, there is concern in the political and military echelons that the court will open a criminal investigation into Israel’s actions in the Strip, a process that could lead to a wave of lawsuits against those involved and even to their arrest abroad.

>>Rising terrorism in West Bank overshadows optimism around Gaza-Israel deal | Analysis 

In the last few months, diplomatic, military and legal officials have held discussions, some of them attended by the prime minister, to prepare for the court’s initial findings regarding the 2014 Gaza war. Toward that end, Israel has begun using third parties to transfer documents to the court that could bolster its stance and influence the examination team, which until now has been exposed mainly to the evidence presented by the Palestinian side.

Demonstration near the Gaza border, November 9, 2018.
Adel Hana/AP

Military advocate general Maj. Gen. Sharon Afek has presented material regarding Israel’s response to the demonstrations in Gaza, but defense sources say these have been for internal use only and have not been passed on to the ICC or to any other body.

The sources say Israel has made a distinction between the two subjects of the court’s examination: While Israel is not cooperating with the ICC on its probe of incidents at the Gaza fence, it is already holding indirect discussions with the court over Operation Protective Edge.

Last April the ICC’s chief prosecutor Fatou Bensouda said that violence against civilians could be considered an international crime, as might the use of civilians as a cover for military operations. She added that the situation in Palestine was under investigation. She warned that the court was following events in Gaza, and emphasized that guidelines for opening fire at demonstrators could be considered a crime under international law.

Public Prosecutor Fatou Bensouda at the International Criminal Court in the Hague, August 28, 2017.
Bas Czerwinski/Pool via REUTERS

Officials told Haaretz that Prime Minister Benjamin Netanyahu’s decision to postpone the evacuation of the Bedouin village of Khan al-Ahmar came after Israel realized that such a move could influence Bensouda, who said she would not hesitate to use her authority with regard to the village. Last month, Bensouda said she was watching with concern the plan to evacuate the West Bank Bedouin community and that a forced evacuation would lead to violence, adding that the needless destruction of property and transfer of populations in occupied territories are a war crime, based on the Treaty of Rome. She linked the planned evacuation to events in Gaza, saying she was concerned by the ongoing violence for which both sides are responsible.

FILE Photo: The West Bank village of Khan al-Ahmar, September 25, 2018.
Emil Salman