Netanyahu mulls allowing ICC reps into Israel, West Bank

The trip would supposedly be for a visit and not to gather evidence.

September 2, 2016 13:45
4 minute read.
The Hague

The entrance of the International Criminal Court (ICC) is seen in The Hague. (photo credit: REUTERS)

Prime Minister Benjamin Netanyahu is considering a request by the International Criminal Court to send representatives to meet with Israel and the Palestinian Authority in the coming weeks, senior government sources confirmed to The Jerusalem Post on Friday.

Officials say the trip would be limited to public relations and educating the public about the ICC, and not gathering evidence about alleged war crimes during the 2014 Gaza war (Operation Protective Edge) or about settlement activity.

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The visit would be almost unprecedented since Israel has not cooperated with numerous UN and other international investigations of alleged war crimes in the past, often refusing UN officials entry into the country.

Neither officials involved in the UN Human Rights Council’s Goldstone Report on the 2008-9 Gaza war (Operation Cast Lead) nor in the McGowan-Davis Report on the 2014 Gaza war were permitted to enter.

The ICC Prosecutor’s Office commented on the potential opening: “What we can confirm at this stage is that the Office of the Prosecutor is in talks with both Palestinian and Israeli authorities about a potential visit.”

It is unclear whether a meeting with the PA would be in the West Bank and whether it would involve Hamas representatives.

The IDF, the Human Rights Council, the ICC and other entities have been investigating war crimes allegations that the IDF killed around 2,100 Palestinians – including between 50-80 percent civilians – during the war against Hamas in 2014. During that conflict, Hamas killed 73 people on the Israel side and hundreds of thousands fled their homes due to Hamas’s rocket fire.

It is unclear what led to the timing of ICC Prosecutor Fatou Bensouda’s request, but Israel has been holding a dialogue with her office since July 2015.

This past February, The Jerusalem Post was the first Israeli media outlet to hold an exclusive, in-person interview with Bensouda at her offices in The Hague.

The 54-year-old Gambian opened up about her relationship with Israel and tensions with Netanyahu who attacked the ICC for recognizing “Palestine” as a state. The prime minister also criticized her office’s decision to open a preliminary examination into whether Israel and/or the Palestinians have committed war crimes.

Since her acknowledgment on January 16, 2015, and her explanation that she felt compelled, in her own decision, to follow the UN General Assembly’s vote upgrading the Palestinians’ status in the UN, Jerusalem has worried that she would follow the Assembly and a general anti-Israel atmosphere in future decisions.

But in her interview with the Post in February, Bensouda tried to put those concerns to rest.

In one of the most intense exchanges of the interview Bensouda said: “The UN General Assembly does not tell me what to do, that the prosecutor should act in this way or that way, unless of course it is in accordance with the statute.”

Asked if this meant that the Assembly is now out of the picture in terms of her legal conclusions, Bensouda said forcefully: “Completely! I’m not even thinking of why they would tell me why I should take this case and not this case. That would be interfering with my independence.”

The ICC chief prosecutor was clear that the Palestinians’ upgraded status within the UN in 2012 as “a non-member observer state” was relevant to her determination of whether it could accede to the Rome Statue, the International Criminal Court’s founding treaty.

This was for technical reasons, but she emphasized that she will never take directives from the General Assembly, or any other institution, when deciding the central question of the war crimes debate: whether the IDF’s investigative apparatus for the 2014 Gaza war complies with international standards.

Numerous Israeli officials confirmed to the Post at the time that these were well-received messages, even though they were disappointed with some other messages she sent about not necessarily accepting some of Israel’s legal arguments.

In the February interview, Bensouda also did not commit about whether her decision to move from a preliminary to a full criminal investigation would be made before the end of her term in 2021.

“I cannot sit here and say that it will take seven years, or it will take 10 years or it will take any number of years... all of this depends on the facts and the circumstances. The preliminary examination cannot be given a timeline,” she said.

Since February there had been no major developments in her examination of the Israeli-Palestinian conflict – until Friday’s announcement.

The latest development in Israel’s own investigations of alleged war crimes was announced on August 24.

In a report by the IDF legal division, the army closed four cases involving the killing of Palestinian civilians during the 2014 Gaza war. The decision was issued in the IDF legal division’s fifth report on war crimes probes since Operation Protective Edge ended two years ago.

The report found that in all four cases – in which a total of 49 were killed – the IDF strikes were legal due to either mistakes or to Hamas being responsible.

In some instances purported attacks were deemed to have not occurred at all.

Out of 360 incidents the IDF has reviewed, 31 have led to full criminal investigations, 13 have been closed and one, a case of theft, has led to an indictment.

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