Based on Israel’s response to the International Criminal Court’s decision Friday to open a preliminary examination into “the situation in Palestine,” one might think the Jewish state had already been indicted, tried and convicted. But the truth is that the jury on the whole matter is still out, and there is a good chance that it may never come to an actual suit against Israeli leaders.
The ICC’s step is the “height of hypocrisy and the opposite of justice,” Prime Minister Benjamin Netanyahu fumed over the weekend, calling it “truly tragic” and “absurd.” He quickly sent letters to Berlin, London, Canberra and Ottawa and beyond, trying to get world leaders to oppose the court’s decision and force it, somehow, to renounce it.
Foreign Minister Avigdor Liberman said the “disgraceful” move is meant to harm Israel’s ability to defend itself against terrorism and vowed to take steps to “disband this court, which represents hypocrisy and encourages terrorism.”
It is indeed ludicrous for Hamas and other Palestinians groups not known for their military ethics to charge Israel with war crimes and crimes against humanity. But the ferociousness of the responses from Jerusalem might have more to do with the March 17 elections, and the opportunity to be seen as an uncompromising defender of the troops, than with a cold analysis of the various scenarios that are likely to unfold at the ICC in the coming months and years.
There is no consensus among the experts about how the process might play out. There is, however, a certain sense that Israel might be more vulnerable over the issue of settlements than over the summer’s Operation Protective Edge conflict with Hamas. No Israeli court is investigating alleged settlement illegalities; but the Israeli legal system is checking into alleged illegalities in Gaza — a central defense against intervention by the ICC. And yet, some legal analysts say the court would be hard-pressed, too, to incriminate Israel over settlements.
The prosecutor’s motivation
It is too early to say whether the ICC’s prosecutor, Fatou Bensouda, is motivated by antipathy toward the Jewish state or whether she is acting in good faith. The fact that she rushed to announce the launch of the preliminary examination even before Palestine officially becomes a member of the court on April 1 leads some observers to fear that Bensouda, indeed, has something against Israel. She could have opted to first consult with other states and organizations over the controversial question of Palestinian statehood but chose not to, they point out.
What Bensouda has done to date is determine that Palestine is enough of a state to join the court, and take the largely technical step of opening a preliminary examination to look into the Palestinians’ complaints. But that is still a long and complicated way from the launch of a criminal investigation against Israeli officials, and the process could easily take months or years.
Case in point: In 2007, the ICC launched a preliminary examination into alleged American crimes in Afghanistan. Eight years on, the ICC says it continues to “maintain contact” with relevant officials and organizations, “and expects to reach a determination on subject-matter issues in the near future.”
And if Bensouda really wants to open legal proceedings against Israeli officials for alleged crimes committed during the last Gaza war or for settlement construction? According to several experts, it is doubtful that she would be able to do so, let alone to hand down convictions.
Why did the ICC rush to open the examination?
Bensouda had long hinted that she would accept Palestine as eligible for ICC membership as soon as the United Nations General Assembly upgraded the Palestinian entity to a nonmember state, which happened in November 2012.
Many in Jerusalem reject this argumentation, lamenting that she is relying on a vote in a political body to issue a legal ruling regarding Palestine’s statehood. For the prosecutor to take the judgment of the UN General Assembly and apply it on legal terms of the Rome Statute — which regulates the ICC — “is to surrender her independence,” international law professor Eugene Kontorovich, who has been critical of unilateral Palestinian moves, wrote in a blog for The Washington Post.
On the other hand, Bensouda’s view was well known and therefore it was not too surprising that she launched a preliminary examination soon after the Palestinians, on December 31, filed a so-called 12(3) declaration and recognized the court’s jurisdiction over the West Bank and East Jerusalem since June 13, 2014.
Given her interpretation of the Rome Statute and her understanding of what constitutes statehood for the purposes of joining the ICC, her step was predictable and can be seen as merely technical.
The interesting question is what will happen next. In a press release on Friday, Bensouda vowed to conduct her analysis of the situation in Palestine “in full independence and impartiality.” Evidently, not everyone buys into this. But it is by no means obvious that she’s thirsting to see Israelis in the dock.
Among Israeli analysts, two scenarios are currently being discussed. Some believe that Bensouda is indeed, as Netanyahu suggested, out to get Israeli leaders. In recent years, the ICC has been criticized for focusing on war-crime cases in Africa, and some fear that Bensouda could see the Israeli-Palestinian conflict as presenting the perfect opportunity to show that the court can also work on a different continent. The enthusiasm with which she accepted Palestine into the ICC also has some officials in Jerusalem worried that she is eager to incriminate Israelis.
“The fact that this is being pushed through so quickly indicates that there was pressure on her, or maybe it shows her own personal desire to push this through as quickly as possible,” said Alan Baker, a former legal adviser to Israel’s Foreign Ministry and currently the director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs. “But that doesn’t mean that tomorrow morning, Israeli politicians and military officers are going to find themselves in the dock, as the Palestinians are claiming.”
Yet there is reason to believe that Bensouda will try to avoid getting sucked into a complicated battle fraught with diplomatic and political pitfalls, which is likely to earn the court much criticism regardless of how it will proceed.
Because it finds itself under constant attack over its inefficiency — in the court’s entire history, only two people have been convicted — the last thing the ICC wants is to be labeled as a political body, said Baker, who participated in the drafting of the Rome Statute. “That is why she’s stressing that she will act independently and impartially.”
Obstacles to an indictment: ‘Complementarity’ and ‘gravity’
Regardless of the prosecutor’s personal leanings, following the preliminary examination with a full-fledged criminal investigation will not be easy. According to the rules of the court, laid down in the Rome Statue, there is only “reasonable basis to proceed” if several criteria are fulfilled.
First, the ICC has to establish that it indeed has territorial and personal jurisdiction over what happened in Palestine. Analysts’ stances on this point align neatly with their political positions: those on the left say the court can easily determine that it indeed has jurisdiction over Palestine; experts leaning to the right have their doubts, wondering how the prosecutor will determine who’s a Palestinian citizen and where the state’s borders are, etc.
Next, the ICC will have to check whether the people under suspicion of crimes have not already been investigated by their country’s own legal system (the so-called complementarity requirement); and whether the alleged crimes are severe enough to occupy a court meant to look into “unimaginable atrocities that deeply shock the conscience of humanity” (the gravity requirement).
According to Baker, this means that Israeli leaders and generals have nothing to be afraid of. “It’s a big bluff, a huge PR exercise” launched by Palestinians to give Israel some bad press, he opined.
Indeed, it would seem difficult to prosecute Israeli leaders over Operation Protective Edge, since the Israel Defense Forces has launched investigations into several instances in which soldiers appeared to have acted inappropriately.
The court could take up Israel’s building of settlements in the West Bank. The Rome Statue, in article 8 (2)b(viii), explicitly defines a war crime as the “transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.” This phrasing was inserted at the behest of Egypt and Syria and is clearly intended to criminalize Israeli settlements.
No Israeli court is investigating the settlements, which means that the criterion of complementarity is not fulfilled. On the other hand, does the building of housing units in East Jerusalem or Ariel fulfill the court’s gravity requirement? Surely the world has seen worse atrocities. The ICC has so far not looked into similar cases of population transfer into occupied territory, such as Turkish settlements in Northern Cyprus, which could indicate that the court does not deem such activity deserving of its attention.
The additional protocols to the Geneva Convention deems settlement construction a war crime, and the Rome Statute considers it “serious violation of the laws and customs applicable in international armed conflict.” But Israel is not a signatory to either treaty and therefore legal experts wonder if the ICC can investigate Israelis for something that according to an Israeli reading of the law is not considered a war crime.
Israel’s anger at the very possibility of having to see its leaders in the dock for war crimes is understandable. Yet currently it is impossible to predict how the ICC’s preliminary examination is going to play out.
“Whatever decision the prosecutor takes, it will attract much attention, and either way she will make someone angry,” said Aeyal Gross, a professor of international law at Tel Aviv University. If she ultimately indicts Israeli leaders, she will antagonize not only Jerusalem but also the United States, Canada and some other Western countries, and risk some of the ICC’s funding. If she lets Israel off the hook, she will be attacked by the Arab world and those believing she bowed to political pressure from the pro-Israel lobby, Gross noted.
Several observers actually posit that Bensouda rushed into opening the case so she can then forget about it for a while. A preliminary examination can go on for years — a temporal refuge in which she doesn’t have to make any decisions at all.
“She will probably take a long time,” Gross assessed, “and hope for some genie to come out of the bottle and take this issue off the table.”