Is the Ben-Gvir effect wounding Israel before he even takes office? - analysis

In February-March 2021, then-ICC prosecutor Fatou Bensouda initiated a full war crimes investigation into IDF actions.

 Head of the Otzma Yehudit party MK Itamar Ben Gvir and members of the party speak to the press after a meeting with Israeli president Isaac Herzog at the President's residence in Jerusalem on November 10, 2022. (photo credit: YONATAN SINDEL/FLASH90)
Head of the Otzma Yehudit party MK Itamar Ben Gvir and members of the party speak to the press after a meeting with Israeli president Isaac Herzog at the President's residence in Jerusalem on November 10, 2022.
(photo credit: YONATAN SINDEL/FLASH90)

There is nothing routine about the FBI probing IDF soldiers regarding their killing of Palestinian-American Al Jazeera journalist Shireen Abu Akleh.

The only question is whether this probe will have a devastating impact and lead to a greater conflict between the International Criminal Court and Israel or whether it will be limited to scoring public relations points.

How could the US probe worsen Jerusalem’s position before the ICC?

In February-March 2021, then-ICC prosecutor Fatou Bensouda initiated a full war crimes investigation into IDF actions and the settlement enterprise since 2014.

But when she was replaced by Karim Khan in June 2021, it all went on indefinite pause.

Palestinians protest in support of slain Palestinian-American journalist Shireen Abu Akleh, as US President Joe Biden visits Augusta Victoria Hospital, in Jerusalem, July 15, 2022. (credit: REUTERS/AMMAR AWAD)Palestinians protest in support of slain Palestinian-American journalist Shireen Abu Akleh, as US President Joe Biden visits Augusta Victoria Hospital, in Jerusalem, July 15, 2022. (credit: REUTERS/AMMAR AWAD)

In fact, not a word has been heard about Israel or Palestine from Khan since he took office nearly a year and a half ago.

There are different theories about why

Optimists say he concluded that it was a loser case or a distraction from other cases where the ICC could achieve more.

Pessimists say he was waiting for a more opportune moment to go after Israel when as well as after he had handled other cases which he viewed as more important – but that the Jewish state remained in trouble.

One of the primary issues Khan would need to rule against Israel on in order to move forward would be to find that Israel’s own investigations are insufficient.

This would have been a tall order before yesterday as Jerusalem had support from Washington and most other Western countries who did not want their judicial systems questioned by the ICC.

All of this stems from the ICC principle that it cannot get involved if the local country where the alleged crime was committed has already probed the issue.

Through years of lawfare combat, Israel has managed to fend off essentially all such war crimes challenges in a variety of European countries.

Khan would have been in conflict with a trend in Western countries to be willing to criticize Israel at the diplomatic level while showing restraint on the legal plane.

Suddenly, everything may have shifted.

If even Jerusalem’s most stalwart ally, the US, is ready to initiate its own probe against Israelis, essentially declaring the IDF’s prior probe inadequate, what is to stop Khan from concluding that Israel’s legal system is adequate on a broader basis?

Part of what is so imbalanced about the situation is that the US cannot actually take any real action.

It does not know which soldiers fired on Abu Akleh and does not have direct access to the evidence.

Rather, it only has access to summaries of the evidence provided by Israel.

Further, Israel has made it clear it will not provide any direct access.

With no suspects and no direct evidence, the FBI will have little to actually investigate.

There is one element where possibly the FBI could shed new light.

In general, the Palestinians refuse to allow Israel to perform autopsies, something which handcuffs Jerusalem legally from bringing more serious charges. Defense lawyers are quite skilled at challenging the cause of death of a victim if there is no autopsy. Maybe the US has a deal from the Palestinians to get autopsy access.

But other than that, while contributing new evidence, would still lack critical evidence that only Israel can provide, the FBI has little to contribute here.

So what is Washington’s end game? To initiate a command responsibility case against a higher IDF official who sets open fire rules or oversaw the operation? That would lead to an even bigger crisis between the countries. It is hard to believe that is the Biden administration’s goal.

Then what?

Given that the US State Department previously essentially let Israel off the hook saying that it believed an Israeli soldier fired the kill shot (this before Israel admitted this was the most likely scenario) but that the killing was unintentional, the turnaround and timing months later would seem bizarre.

Other than the MK Itamar Ben-Gvir effect.

The announcement that the US would go after IDF soldiers involved in the killing came only shortly after it was reported that American officials were warning incoming prime minister Benjamin Netanyahu not to appoint Ben-Gvir and his colleague Religious Zionist Party chief Betzalel Smotrich to key security posts.

There was no veiled threat: the Biden administration made it clear that they will not work with either of these men as Defense Minister or Public Security Minister. Ben-Gvir not only has deep Kahanist connections but has called to remove restraints on IDF open-fire rules regarding Palestinians – restraints which IDF lawyers consider crucial.

In addition, at least one wing of the Democratic party in Congress has been campaigning for a probe and the US midterm elections are now over – meaning, a new fight with Israel will not carry a big electoral cost in the US.

So this could be the Biden administration’s way of threatening Netanyahu with how bad things could get if he gives real power to Ben-Gvir, let alone allow him to remove the restraints on the IDF or the police’s open-fire rules visa vise protesting-rioting Palestinians.

And at the same time, he satisfies a part of his harder-left Democratic base.

In a broader context, this is also happening at the same time as the US issues an intelligence report slamming and exposing the UAE for a mix of legal and illegal campaigns to influence public opinion in the US about the small Sunni state.

The Biden administration also continues to take to task the Saudis regarding human rights issues.

None of this is to compare the UAE, the Saudis and Israel. But in the Biden administration’s mind, it may need to “call out” Israel on certain issues so as not to appear biased against other countries.

In any case, the next moves which will determine how bad this gets are up to Khan, and Netanyahu regarding how he handles Ben-Gvir.