Israel to tell ICC: You don’t have authority to investigate us

In formal response to court’s decision to launch war crimes probe, Jerusalem expected to say it won’t cooperate with the investigation

Demonstrators carry banners outside the International Criminal Court, ICC, rear, urging the court to prosecute Israel's army for alleged war crimes, The Hague on November 29, 2019. (AP/Peter Dejong)
Demonstrators carry banners outside the International Criminal Court, ICC, rear, urging the court to prosecute Israel's army for alleged war crimes, The Hague on November 29, 2019. (AP/Peter Dejong)

Israel will tell the High Court of Justice that the court does not have the authority to probe alleged war crimes by Israel and Palestinian terrorists.

In its formal response to The Hague-based court’s decision to open the war crimes probe, Israel will say it won’t cooperate with the investigation, according to a statement Thursday from the Prime Minister’s Office.

“In the letter, it will also be noted that Israel completely rejects the claims that it is carrying out war crimes,” the statement said.

The Prime Minister’s Office said Israel’s stance has been made known to the court by “central countries and world renowned experts” and stressed the Jewish state is “committed to the rule of law” and capable of investigating itself.

The decision on how to respond came after two days of talks held by Prime Minister Benjamin Netanyahu, Defense Minister Benny Gantz, Foreign Minister Gabi Ashkenazi, IDF Chief of Staff Aviv Kohavi, Attorney General Avichai Mandelblit and other top officials.

Last month, the ICC sent formal notices to Israel and the Palestinian Authority about the impending investigation, giving them a few weeks to seek a deferral by proving they are carrying out their own investigations. The deadline to respond is Friday night.

According to the Ynet news site, officials deliberated whether to tell the court that Israel would investigate the claims against it, but decided that doing so would be a recognition of the ICC’s authority.

Israel may also ask for more time to file a response, citing the political situation and efforts to form a government after inconclusive elections on March 23, the report said, quoting sources as saying ICC chief prosecutor Fatou Bensouda would likely approve the request. The report said such a request would not recognize the court’s authority.

ICC prosecutor Fatou Bensouda is seen through a plexiglass lectern in the court room of the International Criminal Court, in The Hague, Netherlands, September 29, 2015. (AP Photo/Peter Dejong, Pool)

Israeli officials blasted the court over its intention to hold an investigation, with Netanyahu slamming the ICC’s “outrageous” decision during a speech Wednesday for Holocaust Remembrance Day.

“The Jewish people were defenseless in the face of the Nazis but are no longer so, and have every right to defend themselves from their enemies,” he said.

The ICC, he noted, was formed in the image of the courts of the Nuremberg trials that brought Nazis to justice. But “from Nuremberg to The Hague things were turned upside down. A body formed to defend human rights has become a body that in actuality defends those who trample on human rights.”

Bensouda announced on March 3 that she was opening an investigation into actions committed by Israel and the Palestinians in the West Bank, Gaza, and East Jerusalem since 2014. The announcement of the investigation came less than a month after the court ruled it had the jurisdiction to open a probe. A preliminary investigation to settle the justiciability question took more than five years.

The ICC announcement followed a request by the Palestinians, who joined the court in 2015 after being granted nonmember observer status in the UN General Assembly.

Illustrative: IDF soldiers rush toward a target during the 2014 Gaza war, known in Israel as Operation Protective Edge, on August 4, 2014. (IDF Spokesperson’s Unit)

Israel has fiercely condemned the investigation, accusing the ICC of bias, noting that it is demonstrably capable of investigating any alleged Israel Defense Forces crimes through its own legal hierarchies, and saying the ICC has no jurisdiction since the Palestinians do not have a state. Israel is not a member of the ICC, but its citizens could be subject to arrest abroad if warrants are issued.

The ICC probe is expected to focus on three main areas: the 2014 war between Israel and Hamas; Israeli settlement policy; and the 2018 Great March of Return protests, a series of violent demonstrations along Gaza’s border with Israel that left dozens of Palestinians dead.

The probe will also look at terrorist rocket fire from Gaza at civilian areas in Israel.

Israeli observers noted the significance of the timing of the investigation’s span: On June 12, 2014, Hamas terrorists kidnapped and murdered three Israeli teenagers in the Gush Etzion area of the West Bank. Bensouda’s investigation — based on the request submitted by the so-called State of Palestine — is set to focus on events beginning from the following day.

The brutal terror attack, which horrified Israelis and drew international condemnation, was a pivotal moment in the lead-up to the fighting in Gaza later that summer. With the investigation set to consider events beginning on June 13, 2014, the crime could be excluded from the court’s investigation.

People gather for a vigil for the three missing Israeli teens outside of the Israeli Consulate on June 16, 2014 in New York City. (Spencer Platt/Getty Images/AFP)

Bensouda is to be replaced as prosecutor in June by British lawmaker Karim Khan. Israel reportedly hopes Khan may be less hostile or even cancel the probe.

Last week, the Biden administration lifted sanctions and a visa ban on Bensouda and another senior court official, which US president Donald Trump imposed last year after she launched an investigation into alleged war crimes by US military personnel in Afghanistan.

The new administration has continued to oppose the Afghan probe, as well as the investigation into alleged war crimes in the Palestinian territories by Israel and Palestinian terror groups. The US, like Israel, is not a member of the ICC.

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