ICC war is far from over - analysis

February 5, 2021 was another major loss for Israel’s six-year war crimes struggle with the ICC, but it was not the end of the line by a long shot.

International Criminal Court prosecutor Fatou Bensouda speaks with her deputy, James Stewart, at an ICC hearing in March 2014 (photo credit: REUTERS)
International Criminal Court prosecutor Fatou Bensouda speaks with her deputy, James Stewart, at an ICC hearing in March 2014
(photo credit: REUTERS)
The International Criminal Court Pre-Trial Chamber’s 2-1 ruling against Israel on Friday night in the war crimes controversy with the Palestinians was a heavy blow to the Jewish state.
In the worst-case scenario, we could see around June (if the ICC moved at light speed), or in a couple of years (a more standard speed), arrest warrants being issued for Israelis or even indictments (though these could be many more years off even in the worst case) by the ICC Prosecution.
But the war is far from lost.
First, the 2-1 split vote shows that Israel and its supporters could have a decent chance to appeal the ruling to the ICC Appeals Chamber.
Israeli government lawyers briefing the media Saturday night implied that they would use “holes” left by both the two majority judges and the one dissenting judge in future rounds of the legal battle.
Exploiting these holes may not be easy since Israeli government officials said Saturday they would not try appealing this specific decision at this stage, as Jerusalem does not want to legitimize or recognize the ICC’s jurisdiction.
But there are later points in the legal process where Israel, or its supporters, might appeal to the ICC Appeals Chamber to overrule the lower court.
Regardless of success, this process could buy time.
Next, there are two major jurisdictional battles to fight before the ICC Prosecution can actually carry out a full criminal war crimes probe, and the ICC’s ruling in favor of Palestinian statehood was only the first.
The second is that the ICC is prohibited from intervening in another country’s business if that state has investigated the allegations on its own.
This is known as the complementarity principle.
ICC Prosecutor Fatou Bensouda has not ruled on this and explicitly told The Jerusalem Post last year that she would file a separate report studying that issue before a full criminal war crimes probe could start.
There is a strong chance that Israel can dodge any war crimes allegations against the IDF for the 2014 Gaza war and for the 2018 Gaza border crisis following a major decision by the ICC Prosecution in favor of the United Kingdom in December 2020.
In that decision, Bensouda essentially decided to slam Britain 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 intentional move to subvert the process.
Jerusalem can use this as a road map for how the ICC might dispose of war crimes allegations against its soldiers.
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 more than 2,100 Palestinians were killed, between 50-80% of whom were civilians.
But nearly every probe has led to the conclusion that no war crime was committed, generally because intelligence believed that the civilians killed had already evacuated or some other mistake was made.
Generally, mistakes do not lead to war crimes even if they might lead to disciplinary measures and demotions.
However, Israeli critics have said that the absence of any indictments proves that the IDF’s probes are not genuine, but a whitewash or “shielding” process for show.
Such arguments are exactly how Bensouda characterized Britain’s probes of its soldiers.
Yet, after all that criticism, she decided to close the case anyway.
Her explanation for closing the case despite no indictments 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.”
This was 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 was 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 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.
This could be good news for Israel.
Regarding the settlement enterprise, Israel will have a harder battle avoiding a full criminal probe because even the legal establishment accepts the settlement enterprise as a general idea, and the High Court of Justice has only invalidated select settlements.
Government lawyers said Saturday night that they still would have strong special arguments against the ICC handling the settlements, being that there is no precedent in history where a court prosecuted the building of housing as opposed to crimes like genocide.
One very worrying issue for Israel that could come up here is that arrest warrants can be issued at the full criminal probe stage.
This means that even if indictments might not be issued for many years, the concern about arrests could come earlier.
The big timing question here is whether Bensouda will opine on the legitimacy of Israel’s legal probes of itself before she leaves office in June or whether the issue will go to the next ICC prosecutor.
Either way, it is really the next ICC prosecutor who will decide whether to issue arrest warrants, what to do with any potential full criminal probe and whether to issue indictments.
It is imperative from an Israeli perspective to be highly involved diplomatically in who succeeds Bensouda, a process that is still very much in play.
At December 2020 meetings on the issue, the international community was so divided on the issue that they skipped deciding on a successor, postponing the decision indefinitely.
All of this is why June would probably be the earliest there could be arrest warrants, and more likely they would be a couple of years off.
A second worrying issue for Israel is that the majority of the ICC judges adopted the world view of the Palestinians in how to look at international law.
Instead of looking at Israel’s more traditional understanding of international law and statehood, the ICC said it accepted what the ICC’s political-legislative body, the Assembly of State Parties, decided.
If this is the trend at this stage, then it could be the trend at later stages and lead to arrest warrants (whether in months or years) and even indictments at a much later stage.
Some full criminal probes have taken up to 10 years, such that the sooner concern is arrest warrants as opposed to indictments.
Still, Israeli officials projected confidence Saturday night that either by using complementarity or other legal arguments or diplomatic pressure, arrests will never happen.
Over and over again officials emphasized how many top donors of the ICC took their side on the Palestinian statehood issue.
These countries may yet have an influence on how the ICC comes out on the criminal probe, issue of arrest warrants and, farther away, indictments.
February 5, 2021 was another major loss for Israel’s six-year war crimes struggle with the ICC, but it was not the end of the line by a long shot.