Israel has support in its war crimes debate with ICC - analysis

In 2018, the ICC Chief Prosecutor issued a report which seemed to signal that the ICC was close to a decision on whether to investigate allegations of war crimes in the Israeli-Palestinian conflict.

May 29, 2019 01:33
2 minute read.

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

One message that came out of Israel’s third conference on Tuesday of top foreign military and academic experts on the laws of war was that it has some key supporters and rising confidence regarding its positions on the International Criminal Court.

This is not how the situation looked six months ago.

In December 2018, ICC Chief Prosecutor Fatou Bensouda issued a report that seemed to signal that the ICC was close to a decision on whether to delve deeper on allegations of war crimes in the Israeli-Palestinian conflict.

This could have put Israel in its most precarious position ever regarding war crimes charges and all of the legal, public relations and diplomatic fallout such a process might imply.

Bensouda even seemed intent on challenging the US for alleged war crimes for its abuse of detainees following the September 11, 2001, attacks.

What a difference six months can have.

Having had her visa canceled by the US and with the ICC facing a variety of diplomatic and economic threats from the US, Bensouda dropped her US case.

Also, while no one knows how Bensouda will rule regarding Israel, many in Jerusalem were concerned that the ICC would come out with a ruling against it as early as this past January or the early spring.

Now, the feeling is that there will be no new major developments with the ICC before the next annual report in December 2019.

This would seem to be supported by a policy memorandum by Bensouda’s office in mid-May in which she admitted that her office had sometimes taken on more than it could chew.

Having tried and failed multiple times to bring high profile officials to trial for war crimes, including heads of state, Bensouda said that in the future, the ICC Prosecutor’s Office would focus more on the achievable, including mid-level officials.

It is in this context that IDF Military Advocate General Maj.-Gen. Sharon Afek stated on Tuesday that Israel still does not recognize ICC jurisdiction over it.

As a good lawyer, he added the backup argument that even if the ICC did have jurisdiction in theory, in practice it must stay out of Israel’s business since the IDF probes its own alleged war crimes and the ICC can only intervene when there has been no probe.

These would seem like strange arguments to make to some of the leading foreign military and academic experts on the laws of war for a country that the ICC Prosecution has been initially probing since January 2015, when Bensouda decided she had jurisdiction.

Making these comments in such an unapologetic manner as well as having sympathy from a significant number of the attendees signals that Israel is confident that it will have support regardless of what the ICC decides, and maybe is gaining confidence about the ICC’s decision.

In other words, the IDF feels that the ICC would merely make itself look out of touch and less relevant if it decides against Israel.

This does not mean that foreign attendees agree with Israel on every specific military tactic and scenario. It also does not mean an end to the majority of the UN accusing Israel of war crimes. But there is now likely a broad desire by a growing number of foreign officials of other countries who fight terrorism to avoid an ICC focus on Israel, lest their militaries later be on trial since many of them utilize IDF tactics for combating terrorism.

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