ICC prosecutor hails ruling, needs time to decide next steps

Gantz to IDF: ICC war crimes ruling ‘a tool of our enemies’; we will defend you

Defense minister says court’s pretrial order claiming jurisdiction to open war crimes probe ‘has no basis in international law’; military vows to defend citizens, service members

Defense Minister Benny Gantz, left, speaks to IDF soldiers during a visit to the IDF Central Command in Jerusalem, on September 15, 2020. (Ariel Hermoni/Defense Ministry)
Defense Minister Benny Gantz, left, speaks to IDF soldiers during a visit to the IDF Central Command in Jerusalem, on September 15, 2020. (Ariel Hermoni/Defense Ministry)

Israeli Defense Minister Benny Gantz on Saturday sent a letter to the IDF calling the International Criminal Court’s ruling claiming it has jurisdiction to open a war crimes investigation against Israel “grave” and “unauthorized.” Gantz asserted the decision is intended to serve as a tool for Israel’s enemies, and promised to shield troops from any repercussions.

“The defense establishment, together with the other state bodies, will act resolutely to prevent harm to IDF commanders and soldiers, and to members of the entire defense establishment,” he said.

“The decision of the judges at The Hague is grave and has no basis in international law. The proceeding…is conducted without authority and is unfounded,” Gantz wrote in the letter, addressed to the IDF Chief of Staff, IDF soldiers and commanders, the director-general of the Defense Ministry, and the upper echelon of Israel’s security establishment.

He called the ICC pretrial chamber’s decision — which asserted jurisdiction to open a criminal investigation against Israel and the Palestinians for war crimes alleged to have taken place in the West Bank, Gaza Strip and East Jerusalem — “a tool in the hands of the enemies of the State of Israel, and those who seek to harm it through the political exploitation of international bodies.”

“The IDF and the entire defense establishment will continue to defend the state and its citizens with dedication and professionalism,” Gantz wrote, “while upholding the values ​​of the State of Israel and the IDF and adhering to the rules of international law.”

The country, he wrote, has to contend “with difficult and complex security challenges,” and is prepared “for any possible consequences arising from this wrong, political and biased decision.”

“I have full confidence that the defense establishment will continue to stand as fortified barrier against threats near and far,” Gantz said.

The high-level security cabinet will discuss the ICC decision during a meeting Sunday, according to the Kan public broadcaster.

The ICC doesn’t try countries, but rather individuals. If Israel and/or Hamas are ultimately convicted of war crimes, and if senior officials are named in such a verdict, they could be subject to international arrest warrants upon travel abroad. Israeli officials said Friday they do not currently anticipate any immediate threats to senior Israeli political or military figures.

Defense Minister Benny Gantz at the Knesset on November 10, 2020. (Oren Ben Hakoon/POOL)

In a 2-1 decision Friday, the ICC’s three-judge pretrial chamber determined that The Hague has the right to launch a war crimes probe because, it said, Palestine is a state party to the Rome Statute establishing the ICC. With one judge dissenting, it ruled that Palestine qualifies as the state on the territory in which the “conduct in question” occurred and that the court’s jurisdiction extends to East Jerusalem, the West Bank and Gaza.

It now falls to the ICC’s chief prosecutor Fatouh Bensouda to decide whether to launch an investigation.

Bensouda indicated in 2019 that she intends to do so, and that the criminal investigation would focus on the 2014 Israel-Hamas conflict (also known as Operation Protective Edge), on Israeli settlement policy, and on the Israeli response to protests at the Gaza border.

Still, her term as prosecutor is set to expire in June and some Israeli officials believe that her as-yet-unelected successor could take a different path.

In a statement on Twitter, Bensouda’s office welcomed the “judicial clarity” of the ruling, but said it needed time before deciding how to proceed. “The Office is currently carefully analyzing the decision & will then decide its next step guided strictly by its independent & impartial mandate,” it said.

Israel is not a member of the ICC and neither is the US. The Palestinians joined the court in 2015.

The Israeli military released a statement on Saturday vowing to continue defending Israeli citizens and backing its soldiers and commanders, slamming the ICC ruling as “biased, irrelevant…and without authority.”

“The IDF has defended and will continue to defend, with determination, the State of Israel and its citizens in all areas, out of a full commitment to the spirit of the IDF, its values ​​and the laws of the State of Israel and international law,” the military said.

Earlier Saturday, Prime Minister Benjamin Netanyahu also assailed the ICC, calling a potential war crimes probe “pure anti-Semitism” and vowing to fight it.

“When the ICC investigates Israel for fake war crimes, this is pure anti-Semitism,” Netanyahu said in a forceful English-language video sent out by his office.

Netanyahu lamented that “the court established to prevent atrocities like the Nazi Holocaust against the Jewish people is now targeting the one state of the Jewish people.”

He further asserted that the ICC is “outrageously” claiming “that when Jews live in our homeland, this is a war crime” — a reference to the court potentially probing Israeli settlement policy in the West Bank.

And, he added, “it claims that when democratic Israel defends itself against terrorists who murder our children, rocket our cities, we’re committing another war crime.”

At the same time, the prime minister complained that the ICC “refuses to investigate brutal dictatorships like Iran and Syria who commit horrific atrocities almost daily.”

The Israeli leader vowed to “fight this perversion of justice with all our might!”

File: The Pre-Trial Chamber of the International Criminal Court (ICC), composed of Judge Péter Kovács, Presiding Judge, Judge Marc Perrin de Brichambaut, and Judge Reine Alapini-Gansou (courtesy ICC)

The ICC is meant to serve as a court of last resort when countries’ own judicial systems are unable or unwilling to investigate and prosecute war crimes. Israel’s military has mechanisms to investigate alleged wrongdoing by its troops, and despite criticism that the system is insufficient, experts say it has a good chance of fending off an ICC investigation into its wartime practices.

Prosecutor Fatou Bensouda, center, and Deputy Prosecutor James Stewart, right, attend the first audience with the chief of Central African Republic’s soccer federation Patrice-Edouard Ngaissona at the International Criminal Court (ICC) in The Hague, the Netherlands on January 25, 2019. (Koen Van Well/Pool photo via AP)

When it comes to settlements, however, some experts say Israel could have a difficult time contesting international law forbidding the transfer of a civilian population into occupied territory.

The US State Department also objected to the decision. “We have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. The United States has always taken the position that the court’s jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council,” it said.

By contrast, Palestinian Authority Prime Minister Mohammed Shtayyeh on Friday praised the decision, calling it “a victory for justice and humanity, for the values of truth, fairness and freedom, and for the blood of the victims and their families,” according to the official Wafa news agency.

Palestinian Authority Prime Minister Mohammad Shtayyeh during a press conference at the Foreign Press Association in the West Bank city of Ramallah, June 9, 2020. (Abbas Momani/Pool Photo via AP)

Hamas on Saturday said “any decision that contributes to supporting the rights of the Palestinian people and defends their freedom is an appropriate decision.”

“The Palestinian people await the day that the occupation and its leaders are brought to trial for their crimes against it. We call to use all means to stop Zionist terror and crimes against the Palestinian people,” said the terror group, which rules the Gaza Strip and openly seeks to destroy Israel.

The three-judge panel was ordered to reach a conclusion on the ICC’s right to exercise jurisdiction in December 2019, after Bensouda determined at the end of her own five-year probe into the “situation in Palestine,” that there was “reasonable basis to believe that war crimes were committed” in the West Bank, Gaza Strip and East Jerusalem regions by both the IDF and terrorist group Hamas, as well as other “Palestinian armed groups.”

At the time, Bensouda said that she believed the court indeed has jurisdiction, under the terms of the Rome Statute which established the ICC, to investigate possible war crimes in the area. But due to the controversial nature of the case, she asked for a definitive ruling from the pre-trial chamber. Member states and independent experts were invited to weigh in on the matter as well. Israel, rejecting the court’s jurisdiction in the matter, chose not to do so.

Israeli officials will meet in the coming days to discuss strategy moving forward, including the possibility of a shift away from the current path of refusing to cooperate with the ICC, Foreign Ministry officials said.

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