Luis Moreno Ocampo, the Former International Criminal Court prosecutor, dropped a bombshell on the Israeli debate over war crimes investigations into last summer’s Gaza war.
In the red-hot debate over the court’s possible involvement in prosecuting IDF personnel for alleged war crimes, he said late Monday night that the IDF could only avoid ICC involvement if it fully investigated the allegations itself.
Ocampo also said that Israel would need to do “damage control” on the West Bank settlements to avoid ICC prosecution that could go after those involved in the communities for war crimes as well.
The spirit of Ocampo’s post in the highly acclaimed Just Security law blog was to make helpful suggestions to Israel to improve its security and reduce the likelihood of prosecution by the ICC.
But the post was also an unmistakable warning shot to Israel about going to easy on investigating its personnel by the founding prosecutor, who still looms large in the arena of public opinion of international law experts.
Ocampo started by thoroughly dismissing Israel’s position that Palestine still might not be a state for purposes of the ICC as isolated, assuming that his successor Fatou Bensouda will accept Palestine as a state as she has publicly indicated.
He explained that the unified position that Palestine is a state for ICC purposes put forth by Secretary-General Ban Ki-Moon, the UN General Assembly and the Assembly of State Parties that governs the ICC would be decisive.
He paid lip-service to Israel’s theoretical right to try to get the ICC or the International Court of Justice (which does not deal with criminal matters, but does advise international institutions on general law matters) to override these decisions, but dismissed these attempts as “highly unlikely” to succeed.
Israel should look at the bright side of the Palestinians joining the ICC, the former ICC head prosecutor said.
That side included that the Palestinians were only joining as of June 13, 2014, not as of 2002 as they had tried in 2009, and that their joining the ICC could mean an end to rocket fire, since any indiscriminate rocket fire going forward could subject Hamas to war crimes charges, he said.
Ocampo may have chartered a path going forward that Israel may take should the ICC get more involved in the war crimes allegations from last summer’s Gaza war.
He noted that Israel can appear before the ICC at the pretrial stage to argue against Palestinian statehood, and that its own investigations of the war crimes allegations are adequate, without accepting ICC jurisdiction or agreeing to Palestinian statehood.
Ocampo even suggested that under ICC rules, Israel could send representatives of Israeli victims of Palestinian terrorism to make these arguments in its place, if it wanted to avoid an official state appearance before a body that Israel has not declared itself bound to.
He added that Israel could use such representatives to argue that under the Oslo Accords, the PA forfeited any right to have the ICC get involved, since the Palestinians gave up their own jurisdiction to Israel pending a final deal.
Regarding the settlements, Ocampo indicated that a late addition to the Rome Statute governing the ICC “as the result of the Arab countries’ request” would make settlements over the Green Line a war crime as an initial matter of principle.
The issue would present “a difficult debate” for Israel, but it needed to participate in the debate and engage the PA and the ICC, he said.
In practice, Israelis might still come out without any war crimes cases being filed, since Israel could try a range of defenses, such as again opposing that Palestine is a state, opposing that West Bank settlements are part of Palestine, arguing that they are special disputed territory, and claiming that any possible crimes committed were “in the past by those who decided the settlements,” he said.
The last argument especially could insulate most or any current settlers from allegations.
It was unclear if Ocampo thought this exclusion would exclude from prosecution all settlers and settlement decisions as of the UN General Assembly vote recognizing Palestinian statehood in 2012, or as of June 13, 2014, when the Palestinian asked the ICC to review the Israeli-Palestinian process, or as of April 1, 2015, when the Palestinians ratification of the Rome Statute is due to go into effect.
But either way, his views have massive implications for any new settlement activity.
One out of the box idea that Ocampo threw out was Israel and the PA running a joint investigations commission regarding the summer war, which could agree to keep the ICC out of things.
But as Ocampo noted, political tension between the parties and the PA’s goal of pressuring Israel by using the ICC as a threat make this highly unlikely.
Ocampo held out as a veiled threat that if Israel dallied on what to do, the Palestinians could jump the process forward beyond the investigation stage to the indictment and trial stage.
In that case, Israel could still make many of the same objections, but the stakes would be even higher and the diplomatic harm would have grown exponentially.
The blog post came days after a week of volatile debate over war crimes investigations in Israel, with Defense Minister Moshe Ya’alon and a number of high-ranked IDF commanders pressuring the military’s legal division directly and indirectly not to criminally investigate some of the most controversial incidents of the summer war.
Whether Ocampo coordinated his bombshell post with the current ICC power-brokers and whether it was a response to Israel’s very public internal debate, the post and the issues raised will be a major force in shaping Israel’s path going forward.