Israel standing before the ICC, five years after 2014 Gaza War - analysis

At this point, no one believes there will be new major developments with the ICC before the next annual report in December.

July 8, 2019 08:20
4 minute read.
Demonstrators hold Palestinian flags during a protest marking the 71st anniversary of the 'Nakba', o

Demonstrators hold Palestinian flags during a protest marking the 71st anniversary of the 'Nakba', or catastrophe, when hundreds of thousands fled or were forced from their homes in the war surrounding Israel's independence in 1948, near the Israel-Gaza border fence, in the southern Gaza Strip May 1. (photo credit: IBRAHEEM ABU MUSTAFA / REUTERS)

About five years ago, Israeli government lawyers imagined that their greatest fear was finally going to come to pass.

Yes, Israel had succeeded at fending off the 2009 UN Human Rights Council Goldstone Report and an initial attempt by the Palestinian Authority to join the International Criminal Court so it could go after Israelis for alleged war crimes.

But by the start of the 2014 Gaza War, the PA had advanced and become a non-member state of the UN General Assembly.

When media reports came out of dozens of Palestinian civilians being killed in Shejaia in Gaza, the calls to take Israeli soldiers and war decision-makers to the ICC were viewed with greater dread by Israeli lawyers.

These cries only got louder after Black Friday, August 1, 2014, when critics of Israel were tossing out numbers of 150 or more Palestinian civilians being killed in only a matter of hours.

After ICC Chief Prosecutor Fatou Bensouda accepted “Palestine” as a state in January 2015 for the purposes of referring war crimes complaints against Israel for killing 2,100 Palestinians over the 50 days (there is a debate as to whether 50% or 80% were civilians), there was no more need to imagine: the nightmare scenario had arrived.

With around 125 countries, and nearly all of the EU, obligated to honor ICC arrest warrants, it seemed that the world where Israelis could travel freely and do business might suddenly shrink precipitously.

Israel later took the unprecedented step of holding quiet meetings with the ICC Office of the Prosecutor (OTP), even as it maintained the ICC lacked jurisdiction over Israel. It did this believing that the dire situation required using every possible defense.

What a difference five years makes.

One message that came out of Israel’s third conference of top foreign military and academic experts on the laws of war in May was that Jerusalem has some key supporters and rising confidence regarding the positions it is taking before the ICC.

This was both a message of the conference’s substance and of time.

Many in July 2014 or January 2015 would have predicted indictments by the ICC against IDF soldiers and wartime decision-makers within one to two years.

The very fact that the OTP has not even decided whether it will open a full criminal probe, let alone indict anyone, says an awful lot about Israel’s position being stronger than some originally thought.

Not that four-and-a-half years would have completely done it. The last half year mattered.

Even seven months ago, in December, Bensouda issued a report that seemed to signal that the ICC was on the verge of a decision to delve deeper into allegations of war crimes in the Israeli-Palestinian conflict.

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

But then the US canceled her visa, and the ICC itself suddenly faced a variety of diplomatic and economic threats from the US. Shortly afterward, one of the ICC's tribunals closed the US case. 

NO ONE knows how Bensouda will rule regarding Israel. However, many in Jerusalem worried that the ICC might rule as early as this past January.

At this point, no one believes there will be new major developments with the ICC before the next annual report in December. Some think Bensouda may even wait until November 2020 to see if a US president gets elected who would be friendlier to the ICC.

Bensouda’s office appeared to acknowledge the situation in mid-May, issuing a memorandum that her office had sometimes taken on too much.

After numerous failures to bring high-profile officials to trial for war crimes, including heads of state, Bensouda wrote that in the future her office would focus more on the achievable, including mid-level officials.

This was the context in which IDF Military Advocate-General Maj.-Gen. Sharon Afek stated in two speeches since May that Israel still does not recognize ICC jurisdiction over it.

He made sure to add alternate arguments: that even if the ICC did have jurisdiction in theory, in practice it cannot interfere with Israel’s business since the IDF investigates its own alleged war crimes and the ICC cannot intercede if there has been a probe, regardless of the probe’s result.

Afek’s emphasized these arguments in successive speeches in an unapologetic manner. That plus the clear sympathy he had from some of the leading foreign military lawyers at the Israeli conference in May showed that Israel is confident that it has backing regardless of the ICC decision.

It seems the IDF now feels that the ICC would merely present itself as out of touch and irrelevant if it rules against Israel.

The ICC may still go after Israelis six months from now, or 18 months from now after the US elections, especially regarding the separate allegations of the settlement enterprise being war crimes.

But last week, an IDF officer name Ofer Winter was promoted to take an elite command with the rank of brigadier-general.

Winter was the commander who gave the order that led to many of the Palestinians being killed during the Black Friday incident. Though the IDF later reported that this included not 150 but around 70 killed civilians – mostly from secondary effects of real-time fire fights with Hamas and who the IDF had thought had evacuated with most of the population – Winter would not be getting such a promotion if the IDF were worried about impending war crimes allegations.

Yes, what a difference five years makes.

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