The road to launching an investigation of alleged war crimes by Israel and Palestinians in Gaza Strip, the West Bank and East Jerusalem will be a long and complicated one, experts on international law have told Haaretz.
The question arose following an announcement by the International Criminal Court's chief prosecutor in The Hague that there is a basis for launching an investigation into such alleged crimes.
Prof. Yael Ronen of the Academic Center for Law and Science in Hod Hasharon said that first, the ICC must decide which areas the ICC has jurisdiction over, as has been requested by ICC Chief Prosecutor Fatou Bensouda. This decision could take several months. “On the matter of Myanmar, the decision was made within four months,” Ronen said. The investigation itself has no timetable, and some “situations,” as the ICC calls them, have been under investigation for years.
“Then, during the investigation, the prosecutor has to investigate all the facts and relevant evidence to determine whether there is alleged criminal responsibility,” Ronen added. “For that, according to the court’s constitution, [Bensouda] may investigate in countries that are ICC members. This means that she might ask to come to Gaza, the West Bank and East Jerusalem and she would probably ask to collect evidence in Israel as well.”
The prosecutor has to investigate all claims, such as claims of self-defense or the information commanders had before they ordered an assault that resulted in civilian casualties, Ronen said: “If the prosecutor decided that there is enough evidence, then she would ask the court to issue a summons for suspects to appear in court either voluntarily or under arrest.” She added that such summonses can be made public or remain confidential. When a summons is published, a file for the suspect is opened.
Nick Kaufman, an attorney with the ICC who has advised the governments of Gabon, Kenya and Myanmar under similar circumstances and was also a senior district attorney in the State Prosecutor’s Office in Jerusalem, said that in the coming days, a decision will be made to invite all interested parties, including Israel, to present their arguments regarding the chief prosecutor’s question about the court’s jurisdiction.
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There may also be a hearing with the interested parties present, Kaufman said. “Israel would have to decide whether to take part in this litigation, knowing that if it loses the legal battle, the diplomatic-political damage would be major,” he said. “Not for nothing did the United States and Myanmar not participate in similar litigation in recent months, out of concern that the judges would order files opened against their armies.
“In Israel’s case, the panel of judges hearing the request is not friendly,” Kaufman added. This is the same panel that returned the case of the Israeli naval raid on the 2010 Marmara flotilla to Gaza to the prosecutor twice to have her reconsider her decision to close the case.
Ronen stressed Israel’s dilemma in the matter: “Israel isn’t obliged to cooperate with the prosecutor. This isn’t the first time that the question arises whether to cooperate with the court, when Israel believes that the court should not be applying its powers in the first place.” She said that in 2003, when the ICC was asked by the United Nations to give an advisory opinion on the legal implications of the security fence, Israel chose not to cooperate in the process so as not to legitimize it.
A similar consideration might be applied here, Ronen said, “although the cost of non-cooperation is completely different – in the end it can manifest itself in Israeli citizens being put on trial. Since the prosecutor’s obligation is also to collect information that lifts responsibility, this is an opportunity to influence the content of any indictment if filed in the end. Only Israel has information of this nature, and Israel is the main – if not the only – interested party in presenting it.”
Prof. Aeyal Gross of the law faculty of Tel Aviv University (and a Haaretz contributor) said that the ICC chief prosecutor “said that with regard to offenses allegedly committed by the Israel Defense Forces during the fighting in Gaza, the question is still open” on whether they can be heard in the ICC. “That is because of information the prosecutor is missing on the processes that took place in Israel in connection with these incidents,” he said.
“This is based on the complementary principle that the court has no authority to hear cases when there was a sincere effort to investigate them by the relevant country itself.” Thus, Gross explained, the information that the prosecutor receives about the seriousness of Israeli probes into instances of civilian casualties during the fighting in Gaza and incidents on the border would impact the question of the court’s authority to hear the case.
According to Gross, the clearer legal danger to Israel is “the establishment of settlements in the West Bank – an act that ostensibly breaks the ban on an occupying power settling civilians in the occupied territory, and of which an Israeli investigation is irrelevant.”
Since all parties involved would have to be investigated, the issue of the court’s authority would apply to Hamas as well, Gross said, adding, “So in the future, and this could take years, we could see indictments against both Israelis and Palestinians if it comes to that.”