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What Does the ICC War Crimes Probe Mean for Israeli Officials?

Whats the timetable look like? What happens if Israel doesnt cooperate? Here's what Chief Prosecutor Fatou Bensouda's decision to look into the behavior of Israel and Hamas means, and what happens next

Judy Maltz
Judy Maltz
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Palestinians sitting outside a destroyed apartment building in Beit Lahiya, Gaza, in 2014.
Palestinians sitting outside a destroyed apartment building in Beit Lahiya, Gaza, in 2014.Credit: Khalil Hamra,AP
Judy Maltz
Judy Maltz

A month after the International Criminal Court ruled that it has jurisdiction in territories captured by Israel in the 1967 Six Day War, Chief Prosecutor Fatou Bensouda announced her decision to open an investigation into possible war crimes committed by Israel and Hamas since June 13, 2014.

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The decision was expected since Bensouda had already determined, through a preliminary examination, that there were reasonable grounds for opening an investigation. In order to move ahead, she first wanted to make sure she had authorization to operate in the West Bank, Gaza Strip and East Jerusalem.

What happens next, and who is likely to be affected? Here are these and other questions raised by Wednesday’s announcement.

What’s the timetable look like?

The prosecutor can be expected soon to hand Israel and the Palestinian Authority a formal letter with the International Criminal Court’s decision. From the moment they receive the letters, they will have 30 days to notify the court whether they intend to investigate the citizens suspected of involvement in the crimes. In such an event, the prosecutor must obtain the court’s approval as to whether or not it is interested in launching an immediate investigation. At the first stage of investigation, testimony will be taken from the victims of the alleged crimes. Afterward, the prosecutor will ask for testimony about the rules of engagement, and how they are implemented, from human rights organizations, experts and perhaps from former Israeli soldiers. It could take the investigation a few years to reache the stage of issuing arrest warrants, if at all. Such arrest warrants are generally issued secretly and member nations of the court are asked to carry them out.

Can Bensouda’s successor change the decision?

Theoretically, a successor could reach a conclusion that there isn’t enough evidence to justify opening any files or indictments and to announce an end to the investigation. The chances of this happening as soon as that person enters the role in June, however, are not very great.

International Criminal Court's chief prosecutor Fatou Bensouda holds a press conference during her visit to look into allegations of extreme violence in Kinshasa, Democratic Republic of the CongoCredit: John Wessels/AFP

What happens if Israel doesn’t cooperate with the investigation?

Israel may serve notice that it intends to investigate its citizens by itself, so there’s no reason for the court to intervene. Alternatively, it may completely ignore the letter. Even without Israeli cooperation, the prosecutor can conduct an investigation. If Israel doesn’t admit entry to ICC representatives, the testimony can be taken at The Hague or in other countries.

Who might be investigated? Would junior officers and soldiers be at risk of being arrested?

It appears that the main subjects of the investigation are government decision-makers and senior military personnel. The defense establishment has already drawn up a list of hundreds of such Israelis who may find themselves under investigation. Low-ranking soldiers will apparently have nothing to fear unless they engaged in a massacre.

How does Israel plan to defend those involved?

The Justice Ministry has already served notice that it is prepared to fully defend any citizen liable to be investigated. Such citizens can be expected soon to be called in for briefings on the issue. Fearing possible arrest abroad, some of them may be requested to avoid any flights out of Israel, or at least any flights to ICC-member countries, so as not to involve the country in any arrest or trial. A number of member states have already expressed their objections to the investigation and diplomatic officials will try to obtain the agreement of these nations not to conduct any arrests.

What incidents will be investigated?

The investigation will deal with alleged war crimes perpetrated in the West Bank, Gaza or East Jerusalem since June 13, 2014. Bensouda referred in an opinion published in late 2019 to three types of possible war crimes: Those Israel and Hamas perpetrated during Operation Protective Edge in the summer of 2014, those Israel perpetrated during the mass demonstrations at the border fence between Israel and Gaza starting March 2018, and those that Israel has perpetrated by means of the settlement of Israeli citizens in occupied territory. Regarding suspicions about Israeli actions along the Gaza border in recent years, Israel can claim it is capable of investigating these on its own. The settlement project is an entirely different matter, for the Israeli government never accepted the claim that moving its citizens to territory occupied during the Six-Day War constitutes a war crime.

Will the ICC convict the state or particular people?

The International Criminal Court convicts only people not countries, but only people who have committed crimes in areas under its legal jurisdiction. That is why Bensouda asked for an opinion from the judges as to whether she had the jurisdiction to investigate alleged crimes perpetrated in the West Bank, Gaza and East Jerusalem.

Who has the court convicted in recent years?

Destruction in Beit Hanoun, in the east of Gaza City during the 2014 war between Israel and Hamas.Credit: MAJDI FATHI / NurPhoto / AFP

Since its establishment in 2002, the ICC has convicted nine people and exonerated four. Thomas Lubanga Dyilo and Germain Katanga, heads of militias in the Democratic Republic of the Congo, were among those convicted. The court has issued 35 arrest warrants to date.

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