The announcement by the prosecutor of the International Criminal Court in The Hague, saying there is a basis for initiating an investigation into suspicions that war crimes were committed in the West Bank and Gaza, has given the political and legal systems in Israel a headache.
The Israel Defense Forces is so far a secondary player in this matter. It is unclear what the immediate implications of this decision are for the army. In the absence of a permanent legal situation in the West Bank, the head of the IDF’s Central Command is the substitute sovereign, but it will fall on the cabinet to decide how the court in The Hague impacts its policy on settlements, which have expanded in recent years against the backdrop of power struggles on the right and the Trump administration’s support for Likud policies.
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For the army, the main issue relates to Gaza. In her announcement, prosecutor Fatou Bensouda cited at least three incidents during Operation Protective Edge in the summer of 2014. She did not indicate which ones she meant, but one of them is presumably the one referred to as “Black Friday,” the battle that took place in Rafah after the abduction of the body of Lt. Hadar Goldin. The incident was investigated at length by the military police’s criminal investigation division. Last year, the military advocate general, Maj. Gen. Sharon Afek, issued a controversial order to close that file.
Other incidents Bensouda may have been referring to included strikes on Palestinian medical teams and ambulances during the fighting. It seems that Operation Protective Edge, with its multiple civilian deaths (over 700 out of more than 2,000 fatalities, even according to conservative IDF estimates) has focused the international community’s attention on the occupied territories.
Bensouda also said she’d consider a preliminary investigation of the way Israel handles demonstrations along the Gaza border fence, protests that began in March 2018, in which more than 300 Palestinians have been killed, many of them unarmed civilians.
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Israel’s main argument is that its investigations of suspected war crimes are no less stringent than those used by other Western nations. It will present investigations that were carried out after the last three rounds of clashes in Gaza as well as over the last decades. However, the number of prosecutions has been low, which has been criticized by human rights organizations, which pointed to the wholesale closure of files.
The charges that have been filed, such as against a sharpshooter who shot a demonstrator at the Gaza border and the prosecution of Elor Azaria, the soldier who shot an incapacitated terrorist, will be used by Israel to prove it deals with these issues in a manner that does not warrant external intervention. The ICC prosecutor will have to decide if these investigations were authentic, voluntary and thorough, which would vitiate the need for dealing with them in The Hague.
A further argument made by Israel is that the ICC was not set up for dealing with transgressions the IDF is now suspected of, but for investigating genocide and ethnic cleansing. It later dealt with widespread war crimes in the Balkans and Africa. Even when the armies of Western nations were investigated, it was for crimes such as torture and murder of prisoners, such as by American and British soldiers in Iraq and Afghanistan.
To date, no investigations have dealt with aerial bombardment or the killing of civilians during fighting, which is what will apparently be the case with Israel. It’s a worrisome precedent for other Western armies as well. The Trump administration’s reaction was almost automatic, but in addition to its support for Israel and the dislike this presidency has for international bodies, such a development should worry American generals as well.
Earlier this decade Ehud Barak, then the defense minister under Netanyahu, warned of a diplomatic tsunami aimed at Israel if it were seen as evading peace initiatives pursued by the Obama administration, or turning its back on diplomatic steps the Palestinian Authority was threatening to take. Barak’s warnings did not prove out. But the international arena turns out to be, as always, a more complex place to navigate. Trump’s support is not the be-all and end-all. Some of Netanyahu’s and the right’s actions – such as the incessant talk of annexing the Jordan Valley and parts of the West Bank, the pouncing on army brass and the military advocate general when they insisted on prosecuting Azaria, the overall atmosphere of incitement against the legal system in light of the Netanyahu investigations – have eroded Israel’s protective layer in fending off an external investigation of its actions in the West Bank.
This issue has not been decided yet and does not yet require changes in rules of conduct given to IDF officers going abroad. But in the long term, the prosecutor’s announcement points to a worrisome trend that may face Israel’s government and defense establishment.