Mandelblit says ICC’s investigation of Israel undermines legitimacy of court

Attorney General Avichai Mandelblit condemned on Wednesday the decision of the chief prosecutor of the International Criminal Court in The Hague to open an investigation into alleged war crimes committed by Israel and the Palestinians, saying it undermined the legitimacy of the court.

“The choice by the chief prosecutor to open an investigation against the State of Israel, a democratic, law-abiding nation, harms the legitimacy of the court’s work,” said Mandelblit.

However, Mandelblit said that Israeli legal officials were watching the case closely and were “ready to deal with any possible developments in the court.”

Prosecutor Fatou Bensouda announced her decision earlier Wednesday, saying that: “The investigation will cover crimes within the jurisdiction of the Court that are alleged to have been committed in the situation since 13 June 2014, the date to which reference is made in the referral of the situation to my office.”

Prosecutor Fatou Bensouda waits for former Congo vice president Jean-Pierre Bemba to enter the court room of the International Criminal Court to stand trial with Aime Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidele Babala Wandu and Narcisse Arido, on charges including corruptly influencing witnesses by giving them money and instructions to provide false testimony, and presenting false evidence, in The Hague, Netherlands, September 29, 2015. (AP/Peter Dejong)

Mandelblit reiterated that Israel and several other nations have argued that the ICC does not have jurisdiction over the case as Israel is not a member and Palestine is not a state.

“This position won widespread support from leading nations and prominent legal experts, however, the judges, in their decision and in the statement from the prosecutor today, decided to ignore the serious legal justifications put before it,” he said.

The investigation was welcomed by the Palestinian Authority and furiously condemned by Israel, with Prime Minister Benjamin Netanyahu calling it “the epitome of anti-Semitism and hypocrisy.” The announcement came less than a month after the court ruled it had the jurisdiction to open a probe.

“Any investigation undertaken by the office will be conducted independently, impartially and objectively, without fear or favor,” Bensouda in a statement.

The June 13, 2014, date is significant. Palestinian terrorists kidnapped and murdered three Israeli teenagers in the Gush Etzion area of the West Bank the day before. By asking for an investigation beginning on June 13, the Palestinians ensured that the ICC will not look into the killing of Eyal Yifrach, Gil-ad Shaer, and Naftali Fraenkel.

From left to right: Eyal Yifrach, 19, Gil-ad Shaer, 16, and Naftali Fraenkel, 16, three Israeli teenagers who were seized and killed by Palestinians on June 12, 2014 (photo credit: IDF/AP)

“The decision to open an investigation followed a painstaking preliminary examination undertaken by my Office that lasted close to five years,” wrote Bensouda. “During that period, and in accordance with our normal practice, the Office engaged with a wide array of stakeholders, including in regular and productive meetings with representatives of the Governments of Palestine and Israel, respectively.”

“We have no agenda other than to meet our statutory duties under the Rome Statute with professional integrity,” she continued.

She noted her previous refusal to investigate Israel for war crimes over the Mavi Marmara raid in 2010. “In the current situation, however, there is a reasonable basis to proceed and there are admissible potential cases.”

Defense Minister Benny Gantz during a visit to the Druze village of Julis in northern Israel, February 23, 2021 (David Cohen/Flash90)

The ICC doesn’t try countries, but rather individuals. Defense Minister Benny Gantz, who is a former IDF chief of staff, said Tuesday that hundreds of Israelis, himself included, could be subject to war crimes probes.

In February, a pre-trial chamber of the ICC determined that The Hague has jurisdiction to open a criminal investigation into Israel and the Palestinians for war crimes alleged to have taken place in the West Bank, Gaza Strip and East Jerusalem, paving the way for a full investigation after a five-year preliminary probe opened by Bensouda.

Bensouda indicated in 2019 that a criminal investigation, if approved, would focus on the 2014 Israel-Hamas conflict (Operation Protective Edge), on Israeli settlement policy, and on the Israeli response to protests at the Gaza border. The probe will also likely focus on accusations of war crimes by the Hamas terror group against Israeli civilians.

In June, Bensouda will be replaced by British lawyer Karim Khan, who has the ability to close down the investigation if he chooses.

Major world and regional powers like the US, Russia, China, India, and Turkey are not members of the court; nor is Israel.

Attorney Karim Khan stands as Kenya’s Deputy President William Ruto, center, awaits the start of his trial in the courtroom of the International Criminal Court (ICC) in The Hague, Netherlands, Sept. 10, 2013. (AP Photo//Michael Kooren, Pool)

Last year, the Trump administration imposed sanctions against ICC officials, including revoking chief prosecutor Fatou Bensouda’s entry visa, in response to the court’s attempts to prosecute American troops for actions in Afghanistan.

In May, then-US secretary of state Mike Pompeo threatened that the US would “exact consequences” if the ICC went ahead with its investigation into Israel and Hamas.

The US State Department under Antony Blinken said last month it had “serious concerns” about the ICC ruling paving the way for the investigation, adding that Israel should not be bound by the court as it was not a member.