IDF, Israeli government lawyers are deploying a smear campaign in response to a recent declaration from the International Criminal Court (ICC) that they are opening an investigation into Israel’s war crimes against the Palestinian people.
ICC prosecutor, Fatou Bensouda, announced on 20th December 2019 that the ICC’s preliminary examination had concluded and that all the statutory criteria under the Rome Statute for the opening of an investigation had been met. She then outlined their conclusions…
- That war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip (“Gaza”)
- That potential cases arising from the situation would be admissible
- That there are no substantial reasons to believe that an investigation would not serve the interests of justice.
Palestine became a recognised member of the ICC in January 2015. This meant that they then had the right to ask the court to investigate crimes without first seeking the Pre-Trial Chamber’s authorisation. However, Bensouda did ask the Pre-Trial Chamber for a ruling on the scope of the territorial jurisdiction of the International Criminal Court (“ICC” or the “Court”) in Palestine and whether it could include the West Bank (including East Jerusalem) and Gaza.
Prior to this announcement, IDF and government lawyers maintained dialogue with the ICC and were more receptive to their requests as they were keen to avoid confrontation. Although they’ve previously demonstrated they have an aptitude for being confrontational (having given the UNHCR a rather difficult time and refusing to allow any UNHRC investigators to set foot in Israel or the West Bank), it’s assumed that this slightly more receptive approach was due to the fact that, unlike the UNHRC, the ICC does have significant enforcement powers. For example, they can issue arrest warrants and they have 125 countries (including most of Europe), signed up to the ICC’s Rome Statute, all of whom all obligated to arrest and extradite these individuals.
The ICC’s recognition of Palestine and the very real threat that the ICC could be looking to prosecute the IDF and Israel’s “settlement enterprise” for war crimes has triggered a change in strategy from IDF and government lawyers as they now attempt to make the case that the ICC is a ‘hostile actor’. Benjamin Netanyahu’s immediate and rather angry response on hearing the announcement was to declare that the court had “no jurisdiction” over Israel because Israel is not a member of the ICC. Israel’s foreign ministry declared his indignation and suggested that the prosecutor had been “influenced by Palestinian manipulation, which aims to weaponise the court.” Israel’s stance now appears to be one of complete indifference to ICC decisions and a strategy of attempting to undermine the ICC’s impartiality but it’s difficult to know how persuasive this argument will in the long term (as any evidence becomes available), or how long Israel can actually continue to ignore pressure from the ICC.
Israel’s attorney-general also subscribes to the new strategy as he too has expressed the opinion that the ICC has no jurisdiction in the West Bank or in Gaza. He has also attempted to make the point that, as Palestine is not recognised as a sovereign state, it should not have the right to refer the situation to the ICC and adds that Israel has a valid claim over the Palestinian territories.
What seems odd here is that there’s no attempt to deny claims of any war crimes. All the effort looks to be completely focused on undermining the ICC’s impartiality, despite the fact that the scope of the ICC investigation includes alleged crimes committed by all sides (including Hamas). It’s therefore difficult to conclude if Israel’s new strategy denotes that they are genuinely confident that they would be successful in undermining the ICC or if they’ve just run out of options and this is some sort of desperate ploy to confuse the issue.