Justice official: Israel yet to decide if it will cooperate

Western envoys warn ICC its future is at risk over probe of Israel, Palestinians

Unnamed diplomats speak of growing concern over court’s alleged politicization; US secretary of state says investigation could undermine efforts for a two-state solution

A demonstrator poses with a Palestinian flag outside the International Criminal Court, ICC, during a rally urging the court to prosecute Israel's army for war crimes, in The Hague, Netherlands, November 29, 2019. (AP/Peter Dejong)
A demonstrator poses with a Palestinian flag outside the International Criminal Court, ICC, during a rally urging the court to prosecute Israel's army for war crimes, in The Hague, Netherlands, November 29, 2019. (AP/Peter Dejong)

Unnamed Western diplomats reportedly warned Thursday that the International Criminal Court’s decision to open an investigation into alleged war crimes committed by Israel and the Palestinians could endanger the future of the Hague-based legal body.

The anonymous officials told Israel’s Kan public broadcaster that there have been growing concerns within the diplomatic community of the alleged increasing politicization of the court and its investigations, and that officials in The Hague have been told of the worries.

The probe will deal with the armed conflict of the summer of 2014, but notably excludes any investigation of the murder of three Israeli teenagers by Palestinian terrorists that started the escalation.

Furthermore, the diplomats said that the United States had been willing to reconsider its opposition to the court and the sanctions put in place in 2019 by then-US president Donald Trump, but that Wednesday’s announcement could influence such a decision being made by the current administration of Joe Biden.

A US State Department spokesman said Wednesday that the administration “firmly” opposes the court’s decision, but is still weighing whether to maintain sanctions against the body imposed by the Trump administration.

Chief prosecutor of the International Criminal Court Fatou Bensouda at the opening of the court’s judicial year with a Special Session at the seat of the court in The Hague, January 23, 2020. (courtesy ICC)

Like Israel, the US is not a member of the ICC and has found itself at odds with The Hague-based international court due to its ongoing probe into alleged war crimes in Afghanistan by Afghan forces, the Taliban and the American military.

In 2019, Trump imposed economic sanctions and visa travel restrictions against chief prosecutor Fatou Bensouda as well as one of her aides.

US Secretary of State Anthony Blinken said Wednesday that Washington “firmly opposes and is deeply disappointed” by the decision of the court.

US Secretary of State Antony Blinken speaks on foreign policy at the State Department, March 3, 2021, in Washington. (Andrew Caballero-Reynolds/Pool via AP)

However, Blinken highlighted Bensouda’s clarification that her office would need to assess priorities and resources before determining when and how to proceed, indicating it was still possible the legal basis was lacking.

“[Bensouda] has previously recognized that ‘it would be contrary to judicial economy to carry out an investigation in the judicially untested jurisdictional context of this situation only to find out subsequently that relevant legal bases were lacking.’ As she acknowledges, that very possibility remains as likely today as ever,” Blinken said.

The top US diplomat added that the investigation could undermine efforts for a two-state solution to the Israel-Palestinian conflict, and noted that Washington remained committed to Israel’s security.

“The United States believes a peaceful, secure and more prosperous future for the people of the Middle East depends on building bridges and creating new avenues for dialogue and exchange, not unilateral judicial actions that exacerbate tensions and undercut efforts to advance a negotiated two-state solution,” Blinken said. “We will continue to uphold our strong commitment to Israel and its security, including by opposing actions that seek to target Israel unfairly.”

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.” It came less than a month after the court ruled it had the jurisdiction to open a probe.

However, a senior Justice Ministry official said Thursday that Israel has yet to decide whether it will cooperate with the ICC’s investigation.

Roy Schondorf, deputy attorney general for international law, told Army Radio that the court’s decision was driven by “political agendas” and that opening an investigation was unjustified, but that Israel has not rejected any participation outright.

“The court’s conduct until now, and the prosecutor’s in particular, doesn’t inspire great trust in the way the procedures will transpire,” Schondorf said, adding that there was “a big question about the value of cooperation.”

A woman takes a picture of the Grim Reaper holding a sign referring to Chief Prosecutor Fatou Bensouda during a demonstration outside the International Criminal Court, ICC, urging the court to prosecute Israel’s army for war crimes in The Hague, Netherlands, Nov. 29, 2019. (AP/Peter Dejong)

Attorney General Avichai Mandelblit said Wednesday the decision to open an investigation undermined the legitimacy of the court.

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

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. The ICC doesn’t try countries, but rather individuals.

“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,” said Bensouda in a statement.

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

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)

Bensouda 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.”

Hamas, which rules the Gaza Strip, welcomed the decision by the ICC.

However, the terror organization is directly implicated in the alleged war crimes the tribunal seeks to investigate. In its statement, a Hamas spokesperson defended the group’s actions as “legitimate resistance” against Israel.

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

Agencies contributed to this report.

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