Prosecuting Israeli Officials Could Take Years, but the ICC's Chilling Effect Will Be Immediate

The panic number has been disseminated again, lawyers are on alert and Israel has already reached out to friendly countries for advance information on arrest warrants. None of this is justified at present

Anshel Pfeffer
Anshel Pfeffer
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Prime Minister Benjamin Netanyahu, then Defense Minister Moshe Ya'alon and then IDF chief Benny Gantz, August 2014.
Prime Minister Benjamin Netanyahu, then Defense Minister Moshe Ya'alon and then IDF chief Benny Gantz, August 2014.Credit: THOMAS COEX / AFP
Anshel Pfeffer
Anshel Pfeffer

Seven years ago, in October 2013, the online headlines in Israel blared that Eli “Chiney” Marom, former commander of the Israeli Navy, had been arrested upon landing at London’s Heathrow Airport. A few minutes later they were corrected. Vice Admiral Marom had only been detained by immigration officers for a few minutes and then allowed to proceed on his way to the United Kingdom. 

What had transpired was that upon arrival, Marom had been asked a couple of questions that sounded ominous to him, and quickly pressed a number on his phone which alerted the government back in Jerusalem. Experts in international law and Israel’s embassy in London were mobilized but by the time they contacted Marom, he had already passed passport control. “Chiney panicked instead of keeping his cool,” observed a bemused Israeli diplomat. 

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Marom had used the special panic-button phone number which serves Israeli generals and other senior officials, both active and retired, to let Jerusalem know they’re in trouble abroad. One of the main concerns used to be arrest for war crimes under a universal jurisdiction clause. Back in 2005, another retired general, Doron Almog, was warned upon landing at Heathrow, that there was an arrest warrant awaiting him. He didn’t even get off the El Al plane, and flew back to Israel. 

Countries that have universal jurisdiction laws have since refrained from using them against Israelis. Britain’s former director of public prosecutions, today the leader of the Labour Party, Keir Starmer, clarified that individual judges could no longer issue arrest warrants without his authorization. Over the past few years, the fear of a sudden arrest of an Israeli general for war crimes has subsided somewhat, until Friday’s ruling by the pre-trial chamber of the International Criminal Court in The Hague, that the ICC has jurisdiction over the West Bank, East Jerusalem and Gaza. 

The court’s decision means that investigations against Israelis (and Palestinians) for alleged war crimes committed in the territories can now proceed. Chief Prosecutor Fatou Bensouda has already said over a year ago that she believes that actions of both Israel and Hamas in the 2014 Gaza clash could constitute war crimes, as do Israel’s settlements in the West Bank and killing of Palestinian protesters on the Gaza border in 2018. 

A list of hundreds of Israelis who could potentially be at risk has already been prepared. The panic number has been disseminated again, lawyers are on alert and Israel has already reached out to friendly countries for advance information on arrest warrants. None of this is justified at present. 

Justice delayed may be justice denied but the ICC’s laborious process cannot be hurried. Before any serious investigation can move ahead, there will be a lengthy exchange with Israel over whether it will cooperate (it won’t). Also, with Bensouda due to retire within a few months, nothing much will happen until her replacement has been appointed and can decide for themselves whether to pursue this particular case. The ICC’s bandwidth isn’t particularly wide and there is a limit to how many cases it can work on simultaneously. The new prosecutor could decide there are more pressing war crimes to focus on. 

Smoke rising from Rafah as Israeli airstrikes hit the Gaza Strip during Operation Protective Edge, in 2014.Credit: Ahmed Ebu Saud / Anadolu Agency

It’s possible that the ICC may be satisfied for the time being with Friday’s ruling on its jurisdiction but decide that it’s not worth fighting the inevitable diplomatic pressure. Even if the case against Israel advances, it will take more time for the ICC to decide which particular Israelis to investigate (the court doesn’t prosecute countries, only individuals), especially since many of those involved in the cases highlighted so far are no longer serving. Years will elapse before any Israelis are actually targeted, if they ever are. 

But even if the arrest warrants are not issued in the next few years, Friday’s ruling will have a chilling effect on the highest echelons of Israel’s leadership. 

Ben-Gurion Airport is currently closed due to the fear of new COVID-19 variants making aliyah, but a nation of frequent flyers waits breathlessly for its reopening. And at the front of the queue are the once-generals and now international businessmen. For those still in uniform or political office, the thought of losing a lucrative second career is a sobering one. Especially now that so many new markets have opened recently for Israeli security types.

The fear of one day, even in the distant future, being forced to stay at home in Israel’s cramped borders, because of a policy you once made or implemented, will have an intangible effect. There are some who even believe that Bensouda’s statement on the settlements in 2019 played a role in staying Benjamin Netanyahu’s hand when he gave up on annexation last summer. Friday’s ruling could also force him to tone down his attacks on the attorney general and the Supreme Court. After all, one of Israel’s main legal claims against the ICC’s jurisdiction is that all the government’s actions are already subject to domestic judicial scrutiny.

The Rome Statute, which established the ICC, states that its role is to “put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” The perpetrators of any alleged war crimes in Israel and Palestine may never be brought to justice, but Friday’s ruling could play a role in, maybe not totally preventing but at least limiting future crimes. 

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