Does The ICC Stand Any Chance With Israel?

Levin Opiyo

Last week in an historic decision the Chief prosecutor of the International Criminal Court (ICC) Mrs. Fatou Bensouda announced that there is sufficient evidence to investigate Israel for war crimes committed against the Palestinians. The announcement followed the completion of preliminary investigations by the Hague-based court regarding war crimes carried out by both Palestinians and Israelis in Gaza, the West Bank, and East Jerusalem since June, 2014.

Focuses Of The ICC Investigation

Among the areas Bensouda will be investigating are atrocities surrounding the Palestinian protests dubbed the “Great March of Return” which have been staged daily on the Gaza Israel border since 2018, and Israel’s illegal occupation of East Jerusalem and the West Bank. Focus will be placed on the Israeli Defense Forces’s (IDF) indiscriminate killings of Palestinian civilians during the protests and in other contexts. On the Palestinian side, Bensouda will be focusing on Palestinian militant and extremist groups’ rocket attacks against Israel, wilful killing of civilians and use of human shields and torture.

Israeli PM Netanyahu On ICC Case: Part Of A ‘Political War Against Israel’

Israel’s reaction reaction to ICC’s announcement was swift and intense, casting the investigation as a step backwards in the peace process and a cynical persecution of Israel. Prime Minister Benjamin Netanyahu described the decision to pursue the case as a “black day for truth and justice” and a “baseless and scandalous decision”.

“As we are moving forward to new places of hope and peace with our Arab neighbors the international Criminal Court in the Hague is going backwards. On Friday it finally became a weapon in the political war against Israel.”

In Netanyahu’s view, the ICC has become a parody of the reasons for its creation. “The ICC was established after the horrors of World War II , in particular the terrible horrors done to our people, and is meant to deal with problems that states bring up against war criminals such as genocide or mass deportation,” Netanyahu said.

Potential Outcomes Of The ICC Investigation

Although nation states cannot be charged by the ICC, the investigation could lead to possible charges being brought against senior Israeli and Palestinian officials. If the case moves to the trial stage, then arrest warrants would potentially be issued against high ranking Israelis and Palestinians. On the Israeli side this could include Prime Minister Netanyahu, former Defense Minister Avigdor Liberman, Moshe Ya’alon, and The Chief of Israel Defense forces at the time of the atrocities in question, Lieutenant General Benny Gantz who is currently leading a bid to oust Netanyahu as Israel’s Prime Minister.

But what are the chances of Bensouda succeeding in prosecuting Israel? First of all, The ICC is governed by the Rome Statue which was ratified by 123 nations except Israel and United states. It is for this reason that Israel maintains that the ICC has no jurisdiction over it since it is not a party to the treaty under which the ICC operates.

Palestine on the other hand⁠—although not a sovereign state⁠—signed the Rome Statute in 2015. This move came three years after the UN General Assembly granted it the status of an observer state, and gave it the rights to sign treaties just like other members of the UN. Although the ICC began preliminary investigations in 2015, it was not until 2018 that the Palestinian Authority formally asked it to investigate war crimes and illegal settlement into its territory.

“The Palestinian referral seeks an investigation into Israeli crimes in the West Bank, Gaza strip and East Jerusalem since 1967,” said Palestinian Foreign Minister Riyad al-Maliki in May 2018 after making the referral to the ICC.

At that time Israel’s foreign ministry responded by stating that, “The purported Palestinian referral is legally invalid and the ICC lacks jurisdiction over the Israeli-Palestinian issue, since Israel is not a member of the Court and because the Palestinian Authority is not a state.”

Israel’s Position: Palestine Does Not Exist

Israel reiterated its stand last week, emphasizing that there is no state of Palestine, and the Palestinian Authority is not sovereign in the territory in question. It argued that signing the treaty did not grant Palestine statehood status before the ICC.

However despite Israel’s argument, the ICC maintains that it has limited and contextual jurisdiction over the nationals of countries such as Israel that are not signatories to the Rome Statute. “This includes when a citizen of non member country commits war crimes against humanity, and genocide on the territory of an ICC member state.”

This means that even though Israel is not under ICC jurisdiction, its citizens could face prosecution for war crimes committed in Palestine which is a signatory to the Rome statute. But again, despite Palestine being a member of the ICC it is not considered a state by Israel and various members of the international community, an issue that poses another legal challenge.

Likely Response By Israel: Full Non-Compliance With The ICC

Despite any weight to a legal argument giving the ICC some authority, Israel could still decide not to cooperate with the court altogether and refuse to hand over any of its citizens to the ICC. Lending credence to this option was a statement made by Netanyahu in 2015 when the ICC began preliminary investigations. In an address to his cabinet Netanyahu vowed to oppose the ICC and said “we will not allow Israeli soldiers and officers to be dragged to the International Criminal Court in The Hague.” That statement alone limits the chances of an Israeli being taken to the Hague for prosecution.

The Limits Of ICC Enforcement Power

The ICC doesn’t have agency or power to enforce warrants of arrest. Instead it relies on member states to carry out arrests. For example when an ICC-convicted individual travels to another country that is a signatory to the Rome Statute, that country is required to make an arrest and hand the suspect to the ICC. This is highly unlikely to happen in third-party countries in this case, however, because many countries are very wary jeopardizing their diplomatic relations with Israel.

When the ICC previously issued a warrant of arrest against the Sudanese leader Omar-El Bashir, no African country made an attempt to arrest him and hand him to the ICC despite numerous pleas by the prosecutor. Instead, Bashir continued to travel in Africa enjoying the protection of fellow heads of state.

On top of that, International justice processes are strongly influenced by security and economic interests that go far beyond the obligations laid out in the Rome Statute. Owing to the United States’ strong interests in Israel, it could use its powers over the UN or its own influence to frustrate the prosecution. Netanyahu seems to be sure of this judging by the remarks he made last week saying that the US was already fighting ICC distortions, lack of justice and lies against Israel.

Donald Trump’s One-Sided Position On The Israel-Palestine Conflict

Unlike former US presidents who tried to give a hearing to both sides on the Israeli-Palestinian conflict, Trump has shown how far he is willing to go to support and protect Israel. This was highlighted in words spoken by former US national Security advisor John Bolton. In a warning to the ICC in 2018 after it threatened to investigate possible war crimes committed by the US in Afghanistan. “If the court come after us , Israel, or other US allies we will not sit quietly,” Bolton said, adding that “we will not allow the ICC or any other organization to constrain Israel’s right to self-defense. We will consider taking steps in the UN security Council to constrain the court’s sweeping powers, including to ensure that the ICC does not exercise jurisdiction over Americans and the nationals of our allies that have not ratified the Rome statute.”

Specifically, Bolton vowed that the United States would retaliate by banning ICC judges and prosecutors from entering the US and imposing sanctions on any funds they had in the US and prosecuting them through the American court system.

Six months later US Secretary of State Mike Pompeo also issued a similar warning,saying “If you are responsible for the proposed ICC investigation of US personnel in connection with the situation in Afghanistan, you should not assume that you will still have or get a visa or that you will be permitted to enter the United States.” In just a matter of weeks the US government showed how serious they were, revoking the ICC chief prosecutor’s visa.

The threats by the US seemed to have worked out as planned, because one week after the revocation of the prosecutor’s visa , the ICC abandoned the Afghanistan war crimes investigations . There’s no doubt that the US could employ similar tactics to put pressure on the ICC with regards to Israel.

The ICC Is A Lame Duck Court

Apart from that the ICC itself is a lame duck court that has had very little success in carrying out prosecutions. In fact since its establishment it has only managed to convict two people.
Most of its cases such as that of Kenya’s President Uhuru Kenyatta have crumbled in disarray. This means that even if the ICC manages to put Israeli individuals suspected of committing atrocities in the Palestinian territory on trial, there are very slim chances that it would achieve a conviction or the ability to enforce a conviction.