The announcement last week by International Criminal Court Prosecutor Fatou Bensouda that an investigation would be opened against Israel for war crimes was no surprise to any government lawyer. After all, when she filed her request for a preliminary ruling, almost a year ago, Bensouda declared that all the prerequisites for opening an investigation had been met subject to a judicial decision on the question of territorial jurisdiction. Accordingly, when the ICC’s pretrial chamber ruled that the provisions of the Rome Statute extended to the West Bank and the Gaza Strip, the formal opening of an investigation was just a matter of time.
From my personal acquaintance with both Bensouda – who was formerly my direct superior at the court – and with the person who will replace her, Karim Khan, neither will be looking to make hasty decisions in the Palestine situation. That could not be said about the previous prosecutor – Luis Moreno-Ocampo. Both are attentive, even sensitive, to public opinion and to the views of victims on both sides.
However, when Prime Minister Benjamin Netanyahu alleged that the ICC was tainted by antisemitism and was prejudicially focusing on Israel to the exclusion of Iran and Syria, Bensouda responded in untypically forthright fashion, rejecting the accusation outright. Indeed, international lawyers have used the term “whataboutism” for this complaint that other states are not being investigated. Such an allegation of bias is completely unfounded. The court is simply not able to investigate crimes committed in Iran and Syria because these countries are not state parties to the Rome Statute. Similarly, the court is not seeking to investigate in Israel, but rather in the territory of an entity that is, effectively, a legal fiction titled “the State of Palestine for the purpose of the Rome Statute.”
In the next stage of the process, Bensouda will be obliged to send so-called letters of notification pursuant to Article 18.1 of the Rome Statute to all state parties to the Rome Statute and even to those states not a party thereto, the latter at her discretion. In these letters, she will invite these states – including Israel – to investigate the suspected crimes instead of her office. The reason for such an invitation arises out of the fact that the ICC operates in accordance with the principle of complementarity and is obliged to afford primacy to domestic investigations and prosecutions in those countries where jurisdiction naturally lies. In other words the court, according to its statute, operates as an institution of last resort and will not occupy itself with suspicions of war crimes when there is a state that is both willing and interested in investigating them.
From the date of receipt of such a letter, Israel will have one month to decide whether to accede to the prosecutor’s invitation. Should Israel choose to claw back the investigation – a process termed “deferral” – the prosecutor will have no opportunity to object unless she believes the proposed investigation will be a sham. In that case she will petition the court’s judges for them to determine the matter. Should the Israeli authorities take up the deferral offer, they will be under the periodic supervision of the Office of the Prosecutor in The Hague, but at least they will be relieved of the threat of international arrest warrants.
Despite the deferral process sounding attractive, it comes with some problems regarding its implementation. It will not be forgotten that Bensouda identified two categories of suspected crimes: the nonproportional use of military force and the settlement enterprise. Regarding the former, one ought to assume that Israel would have no problem clawing back an investigation into events arising out of the Israel Defense Force’s 2014 military operations and the incidents associated with the protests along the security fence in the Gaza Strip. However, with respect to the settlement enterprise, Israel will not be competent to investigate a policy that dates back years and is not even defined as a criminal offense in domestic legislation.
The timing of the prosecutor’s announcement is particularly problematic. The prosecutor is not oblivious to Israeli domestic politics and was surely aware that Netanyahu would use her announcement as fodder for his election campaign. If Bensouda should send the notification letters in the coming days, before the March 23 election, Israel will be required to formulate its policy vis-à-vis deferral at a time when a new government is being formed and the person who will head it is being chosen. These notification letters are, as a rule, sent confidentially with days of the formal announcement of the opening of an investigation.
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Accordingly, it is in Israel’s interests to clarify, through accepted diplomatic channels, that the letters should not be sent until a new government is up and running. After all, a new government could look more favorably on the possibility of reinitiating the domestic investigation into various incidents of the nonproportional use of military force. It is, furthermore, not inconceivable and even desirable that a new government should seek to postpone an investigation into the settlement enterprise in the context of renewed peace negotiations. Such a move would possibly be welcomed by the Office of the Prosecutor in The Hague, which has for years encouraged a policy that it calls “positive complementarity” – namely, exploiting the threat of international prosecution in order to persuade the parties to a conflict to lay down their weapons.
Under the circumstances, it would be unfortunate for Israel to miss the opportunity of deferral which could provide the ideal excuse for reinitiating peace talks with the Palestinians. However, if Israel squanders such an opportunity it should come as no surprise if at a later date the court will hint that the government has no one but itself to blame for the export of the judicial process to The Hague.
Nick Kaufman, an expert in international law, is a defense attorney before the ICC who previously served as a prosecutor there. He also worked as a prosecutor in Jerusalem for several years.