B’Tselem war crimes report unlikely to make much impact - analysis

The perception is that the International Criminal Court is not going to come after the IDF anytime soon.

The entrance of the International Criminal Court (ICC) is seen in The Hague March 3, 2011. (photo credit: REUTERS/JERRY LAMPEN/FILE PHOTO)
The entrance of the International Criminal Court (ICC) is seen in The Hague March 3, 2011.
B’Tselem’s annual report on alleged Israel war crimes covering 2020 will doubtless get the attention of the IDF legal division, but may have less of an impact than its reports in recent years.
Not only are there fewer fatalities to report than in recent years, especially compared to the 2014 Gaza war and the 2018 Gaza border crisis, but the perception is that the International Criminal Court is not going to come after the IDF anytime soon.
In December 2019, ICC Prosecutor Fatou Bensouda came after Israel strongly and asked the ICC Pre Trial Chamber to authorize a full criminal investigation against Israel for fatalities in 2014, 2018 and the settlement enterprise.
Bensouda also asked to receive this authorization by March 2020 so that she could make progress in the criminal probe before her term ends in June 2021.
The ICC Pre Trial Chamber ignored the timing of her request.
In addition, the ICC judges may wait until a new prosecutor replaces Bensouda in June 2021.
All signs from last month’s ICC conference are that the countries making up the ICC are unhappy with the current direction of the organization and highly concerned about its future.
Originally, they were supposed to pick a successor for Bensouda last month, but failed to because of the intensity of their concerns and different opinions about the organization’s future.
If in past years, B’Tselem’s annual reports loomed over the IDF as potential future exhibit A, B and C in a criminal indictment against its soldiers, now that scenario is less likely.
Of course, the concerns raised in the report cannot be downplayed.
The report notes that 27 Palestinians were killed, seven of them minors, even in a “less violent” year.
The IDF spokesman responded to B’Tselem saying it was, “unprofessional, misleading and that the accusations were baseless.” A senior defense source added that the report’s bias was clear from its intermixing of Palestinian terrorists with Palestinians who were or may have been innocent.
This is a key point. Some of those Palestinian fatalities mentioned in the report were violent and others were at least involved in suspicious activity. Another group were clearly innocent bystanders who were shot either because of lax IDF open fire regulations or mistakes by individual trigger-happy soldiers.
It is fair to critique the report for this intermixing. Still, there is a question about how to handle the cases of innocent bystanders killed.
B’Tselem mentions Ali Abu Alia, 15, and Zeid Qaysiyah, 17 as “being killed by sniper fire from a considerable distance, while Palestinians were throwing stones at soldiers who entered their respective communities.”
“Each of the teens was watching the clashes from afar – Abu Alia on the ground, about 150 m. from the soldiers, and Qaysiyah from the rooftop of his home, about 100 m. from the sniper who killed him,” said B’Tselem.
Iyad al-Halak, a special needs innocent individual killed in east Jerusalem, is another case in point of someone who should never have been killed in a million years.
In Halak’s case, the border policeman who shot him is expected to be indicted for second degree murder.
There have been half a dozen or so such cases of indictments of IDF soldiers in recent years, but they are the exception.
In December, an IDF Court also sentenced an IDF soldier for mistakenly killing an innocent Palestinian on March 20, 2019 at a junction near Efrat.
But as B’Tselem correctly notes, most such cases end up with relatively lenient sentences – that case ended with the soldier getting only a punishment of community service.
The harshest punishment in recent years was an 18-month sentence given to the Hebron shooter Elor Azaria who was caught on video killing a Palestinian attacker who had already been wounded, neutralized and was laying dazed on the ground.
But even the IDF prosecution had requested a three to five year sentence, while globally critics called for even more prison time.
In the end, Azaria served only nine months in prison after his sentence was commuted multiple times and he was also given a standard reduction for good behavior.
The question is whether the IDF will reconsider some of its open fire regulations in instances where there is a long record of mistakes or misfires and where the risk to soldiers’ lives is minimal.
The chances of such a reevaluation are low.
Though the IDF and Israeli society feel pressure from the ICC and human rights groups over such incidents, there is equal or sometimes more powerful pressure from ongoing dangers and attacks on Israelis.
The B’Tselem report notes three Israelis killed by terrorists this year, but there are many more plots, with the Shin Bet and IDF thwarting sometimes hundreds of incidents per year.
Also, in late December, an IDF combat soldier was relieved of duty for not responding when a Molotov cocktail was thrown at him.
Granted a Molotov cocktail is far more violent than some of the small rocks that Palestinians sometimes throw (large rocks can be as dangerous as Molotov cocktails), but the soldier was not injured and it does not appear he was that close to being injured.
Still, the IDF’s message was that he should have used force to neutralize the Molotov cocktail thrower.
This means that until some distant day when the Israeli-Palestinian conflict may calm down, the yearly dance between the IDF and human rights groups like B’Tselem is likely to continue, with or without ICC intervention.