Analysis: The ICC and Israel - Murky but getting clearer

The latest dispute at the forum was the court’s first actual decision related to the Israeli-Arab conflict, which it approved by a 2-1 majority.

July 20, 2015 01:19
3 minute read.

International Criminal Court prosecutor Fatou Bensouda speaks with her deputy, James Stewart, at an ICC hearing in March 2014. (photo credit: REUTERS)

The International Criminal Court’s treatment of Israel may be quickly transitioning from a state of uncertainty to yet another forum of conflict and bias.

On Thursday, the court found that its chief prosecutor Fatou Bensouda had committed “material errors” in choosing to not open a criminal investigation into war crime allegations against IDF personnel related to the 2010 Mavi Marmara flotilla raid.

The latest dispute at the forum was the court’s first actual decision related to the Israeli-Arab conflict, which it approved by a 2-1 majority.

In November 2014, a previous investigation into the incident had resulted in Bensouda closing the case. The prosecutor stated then that the army’s conduct in raiding the vessel appeared to meet elements of war crimes, but that the 10 passengers killed on the ship were not enough to warrant ICC involvement, since the office is focused on mass killings.

With its updated decision, however, the ICC, has told Bensouda that she should have considered more seriously the possibility that the deaths of those killed by the IDF in the incident were “systematic or resulted from a deliberate plan or policy to attack, kill or injure civilians.” The court’s judgment also highlighted the suffering of Gazans caused by the ongoing blockade of the coastal territory – something many would regard as an entirely separate and political issue. One of the three ICC judges who dissented from the majority ruling echoed Bensouda’s original decision that the incident was too small for the ICC to investigate.

The dissenting judge echoed Israel’s contention that it was obvious that any potential trial would go nowhere because there was a violent altercation between the IDF and passengers who attacked the soldiers – albeit with less sophisticated weapons – which led the IDF to respond in self-defense. It also sets the ICC judges up as potentially tougher on Israel than Bensouda, who Israel had already criticized for recognizing a State of Palestine.

In the best case, Bensouda may appeal the court’s decision to the body’s Appeals Chamber who may chose to reverse the lower court’s decision and re-open the file or she may stick to her original closing of the file. From the Israeli perspective, the Mavi Marmara case is small enough that its primary threat is setting bad precedent for the tribunal rather than legally endangering the IDF and its top officials.

The fact that the ICC’s pre-trial Chamber officially considered political controversies such as the Gaza blockade and the many UN and Israeli reports on the issues in dispute as points against Israel is a significant development.

The development suggests that the ICC may act the same way with a potential investigation into the 2014 Gaza war crimes allegations. Such a case would involve war crime investigations into last summer’s conflict in which 2,100 Palestinians were killed, 50% of whom were civilians, even according to Israeli estimates. Such a case would represent far broader legal threats to the IDF and Israeli political leaders.

Even with all the evidence demonstrating Hamas’ use of human shields, and the precautions it took to reduce civilian deaths, the sheer disparity between Palestinian and Israeli casualties meant that Israel was going to need a panel of judges sympathetic with the overall nature of the conflict to get what it would regard as a fair hearing from the court.

Some had even hoped that the ICC would overrule Bensouda – who in January recognized Palestine as a full state and member of the ICC’s Rome Statute – by dropping her from the ICC.

Thursday’s decision not only makes that possibility even more remote, but engages Israel’s worst fears of what it can expect from the court as an institution.

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