'What About Hamas?': Fact-checking Israel's Response to ICC Prosecutor's Call to Probe War Crimes

Since the International Criminal Court's Prosecutor announced there's reasonable basis to probe Israel for war crimes against Palestinians, Israeli media and officials were quick to spread false conclusions. These are the facts

Noa Landau
Noa Landau
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Palestinians walk during the sunset between the rubble of their destroyed building in Shijaiyah neighborhood of Gaza City, October 12, 2014
Palestinians walk during the sunset between the rubble of their destroyed building in Shijaiyah neighborhood of Gaza City, October 12, 2014Credit: Adel Hana / AP
Noa Landau
Noa Landau

Since the announcement by International Criminal Court's Prosecutor in The Hague on Friday on the conclusions of its preliminary examination of the situation in the West Bank, East Jerusalem and the Gaza Strip – a number of inaccuracies have spread in public discussion of the matter in Israel.

For example, politicians immediately condemned the “opening of the investigations,” while the ICC prosecutor, Fatou Bensouda, has yet to open an investigation. Instead, she has determined that while there is a “reasonable basis to proceed with an investigation” – The question of the territorial jurisdiction of the court must first be determined. This is because the Gaza Strip, West Bank and East Jerusalem are disputed territories. Israel has asked for this determination as to the ICC’s jurisdiction, in part because of the legal opinion released by Attorney General Avichai Mendelblit following of the prosecutor’s announcement.

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>> Read more: The road to an ICC probe of alleged Israeli war crimes: What happens next? | Explained

For example, MK Ayelet Shaked tweeted immediately after the release of Bensouda’s announcement on Friday that “the decision of the prosecutor of the ICC in The Hague to open an investigation against Israel is a political decision, hypocritical and expected, regrettably. She has no authority to do so and Israel must battle it with all the means at its disposal. Shabbat Shalom!” Nonetheless, Bensouda has not yet opened an official investigation, and so far has only asked the court to clarify the issue of jurisdiction.

Prosecutor Fatou Bensouda (L), and Deputy Prosecutor James Stewart (R), at the International Criminal Court (ICC) in The Hague, the Netherlands, January 25, 2019. Credit: Koen van Weel / AP

Israeli Foreign Minister Yisrael Katz, who is expected to be knowledgeable about the details due to his position, tweeted that it cannot be “that the prosecutor is taking on herself and the court judicial authority against the law.”

“It is unacceptable for the Prosecutor to bend international law in order to fit it to Palestinian propaganda and political agenda,” tweeted Katz. As mentioned, she did not take the authority for herself but sent the matter to the court for clarification.

Prime Minister Benjamin Netanyahu also was mistaken when he said at the beginning of the cabinet meeting on Sunday morning: “The ICC was established after the horrors of World War II, mainly the horrors that were inflicted on our people.” The ICC deals with the personal criminal culpability of individuals, and it was established in 2002 under the auspices of the Rome Statute. Netanyahu must certainly have meant the International Court of justice, which also operates in The Hague and was established in 1945 after World War II. It focuses on conflicts between countries and offers advisory legal opinions for the United Nations.

In addition, Netanyahu said the ICC “was designed to deal with problems that states would raise regarding war crimes, such as genocide or large-scale deportations. It was designed to do so for states that did not have true judicial systems in law, which are present – of course – in the western world.” Netanyahu is referring to the “complementarity principle,” according to which the ICC only undertakes proceedings when the relevant country is unable or unwilling to conduct appropriate legal proceedings itself. Netanyahu is now conducting a staunch battle against the credibility of the Israeli legal system, and against its attorney general, which in doing so he himself is the one harming the image of the Israeli legal system as credible and independent – which is one of the things that will be clarified in the Hague.

Another common error over the past few days has been to say the prosecutor only wants to investigate Israel. But in Section 94 of her report, Bensouda explicitly states “there is a reasonable basis to believe that members of Hamas and Palestinian armed groups committed the war crimes of: intentionally directing attacks against civilians and civilian objects … using protected persons as shields … willfully depriving protected persons of the rights to fair trial … willful killing … torture or inhuman treatment … and/or outrages upon personal dignity.” In reality, as far as the Gaza Strip is concerned, there are many more counts of suspicion against the Palestinians than against the Israeli side in the statement.

For example, the front page of the Yedioth Ahronoth newspaper on Sunday mentioned Hamas, under a headline that said: “They are not investigating them.” But they actually are asking to investigate them, too. This same mistake was actually spread by the deputy attorney general for international law, Roi Sheindorf, too, who is in charge of dealing with issues concerning The Hague. He told Army Radio on Sunday morning that the prosecutor is “completely ignoring the actions and crimes committed on the Palestinian side.”

Sheindorf clarified the matter later and told Haaretz that he meant the narrative of the decision in its entirety, especially the section on the historical background, was slanted, in his opinion, and it did not focus on the Palestinian Authority – which is true.

The Palestinian side, and in particular Hamas, unsurprisingly hid in their responses the fact that Bensouda asked to open an investigation against them too, and instead concentrated on praising her for her intention to investigate Israelis.

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