ICC rebukes, but clears UK – maybe the same for Israel - analysis

This could be a roadmap for how the ICC might end a six-year saga and dispose of war crimes allegations against Israel relating to the 2014 Gaza War.

ICC CHIEF PROSECUTOR Fatou Bensouda in The Hague earlier this year (photo credit: EVA PLEVIER/REUTERS)
ICC CHIEF PROSECUTOR Fatou Bensouda in The Hague earlier this year
(photo credit: EVA PLEVIER/REUTERS)
In possibly the most important decision by International Criminal Court Prosecutor Fatou Bensouda that could impact Israel, she decided on Wednesday to essentially slam the United Kingdom for war crimes in Iraq and sloppy probes, but closed the case anyway.
Her reasoning for closing the case was that even if the UK’s probes were below par for lack of indictments, she did not find evidence that there was any intention to subvert the process.
This could be a road map for how the ICC might end a six-year saga and dispose of war crimes allegations against Israel relating to the 2014 Gaza War.
Since December 2019, Bensouda has been waiting for the ICC Pre-Trial Chamber to decide whether to accept her findings that for ICC purposes, Palestine is a state.
The Jerusalem Post accurately predicted half-a-year ago that the ICC judges would wait for the US presidential election results before ruling.
The ICC judges might reject Bensouda’s decision and close the case before it even gets as far as the ICC’s probe of the UK got.
But even if the ICC Pretrial Chamber recognizes Palestine as a state, the war crimes train heading towards Israel could still be stopped at the same stage where Bensouda cleared the UK.
Here are some of the key quotes from Bensouda’s decision, “Nevertheless, the outcome of the more than ten year long domestic process, involving the examination of thousands of allegations, has resulted in not one single case being submitted for prosecution to date: a result that has deprived the victims of justice. Although a handful of cases have been referred for prosecution, in each instance, prosecution was declined on evidentiary and/or public/service interest grounds.”
Further, she said, “This outcome has triggered apprehension among observers that either the underlying claims were vexatious, or, conversely, that the UK process was not genuine.”
Israel has engaged in hundreds of initial probes and 32 full criminal probes of its own soldiers’ conduct during the 2014 Gaza War in which over 2,100 Palestinians were killed, between 50%-80% of them were civilians.
Nearly every probe has reached the conclusion that no war crime was committed, generally because intelligence believed that civilians killed had already evacuated or because of some other mistake was made.
Generally, mistakes do not lead to war crimes even if they might lead to disciplinary measures and demotion.
However, Israeli critics have said that the absence of any indictments proves that the IDF’s probes are not genuine, but a whitewash or a “shielding” process for show.
Such arguments are exactly how Bensouda characterized the UK’s probes of its soldiers in the above quotes.
Yet, after all that criticism, she decided to close the case anyway.
Her explanation for this despite no indictments being served and concerns of shielding was: “if shielding had been made out, an investigation by my Office would have been warranted. Following a detailed inquiry, and despite the concerns expressed in its report, the Office could not substantiate allegations that the UK investigative and prosecutorial bodies had engaged in shielding, based on a careful scrutiny of the information before it.”
“Having exhausted reasonable lines of enquiry arising from the information available, I therefore determined that the only professionally appropriate decision at this stage is to close the preliminary examination,” wrote Bensouda.
This is no ringing certification of the UK’s probes of its alleged war crimes against Iraqis during and following the 2003 Iraq War all the way until 2009.
In fact, there is a clear tone of condemnation from Bensouda: she pretty much says in other spots that if she had been the British prosecutor she probably would have indicted.
However, she also recognized that this was not the job of the ICC.
The ICC is usually only supposed to jump in when a country does not prove its own war crimes at all.
Bensouda also believes that the ICC can step in if a country probes its own war crimes, but she then finds that the probes were insufficient.
She has not added a corollary that even if a country’s probes were insufficient, the ICC should not second guess those results if the probes were undertaken in good faith, however problematic in their results and implementation.
The decision on Israel may, however, go beyond Bensouda’s term which ends in June 2021.
Either the ICC judges or her successor may drop the case simply based on deciding that recognizing Palestine is too political a m