Israel’s dilemma: working with the ICC war crimes investigation or not?

Israel faces a dilemma: should it present its case to investigators at the International Criminal Court investigating alleged war crimes in the West Bank, Gaza and East Jerusalem, or refuse to cooperate?

Prime Minister Benjamin Netanyahu, a vocal critic of the ICC, declared that Israel was “under attack” after prosecutor Fatou Bensouda announced on Wednesday that he was opening an investigation into the actions of all sides in the 2014 Gaza conflict .

“We will speak the truth in all forums, in all countries, at all stages until this outrageous decision is reversed and becomes null and void,” he said.

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The ICC is the only permanent war crimes tribunal in the world and was created in 2002 to try the worst crimes on the planet where local courts do not want or cannot intervene.

He does not judge the states, but the main leaders or warlords who are supposed to have given the orders. Even presidents were taken to the court in The Hague.

So, in theory, it may be possible that Netanyahu or Defense Minister Benny Gantz, who led Israel’s Defense Forces during the 2014 conflict that Gaza’s Hamas terrorist riots faced, are targets of the ICC’s investigation.

Some countries have stopped efforts to investigate the main national leaders, allegedly behind the war crimes.

Under former President Donald Trump, the United States imposed sanctions on Bensouda after she separately decided to investigate alleged US war crimes in Afghanistan.

Netanyahu’s office said on Friday that, in a liaison with U.S. Vice President Kamala Harris, she “expressed total opposition from the US government to the prosecutor’s decision” to investigate the Gaza war.

Netanyahu did not make it clear whether Israel would react through diplomacy and public opinion – or engage directly with the ICC, of ​​which Israel is not a part.

There is also an intermediate path, said Pnina Sharvit Baruch, former head of the international law unit of the Israeli Military Attorney General: providing less than full cooperation, but not a total boycott.

“What Israel can do and is likely to do is provide the prosecutor with the relevant materials” for his defense, but without formal cooperation because the Jewish state “does not trust this court,” she told AFP.

The ICC investigation will focus on the 2014 conflict between Israel and the Gaza-based terrorist group Hamas, as well as Israeli settlements and violence on the Israel-Gaza border as of 2018, Bensouda said.

The jurisdiction of the investigation begins on June 13, 2014, just before the conflict begins.

Israeli observers noted the importance of the timing of the investigation: on June 12, 2014, Hamas terrorists kidnapped and murdered three Israeli teenagers in the West Bank area of ​​Gush Etzion. Bensouda’s investigation – based on the request of the so-called State of Palestine – is scheduled to begin the next day.

The brutal terrorist attack, which horrified Israelis and attracted international condemnation, was a pivotal moment in preparation for the fighting in Gaza later that summer. With the investigation set to consider events that started on June 13, 2014, the crime could be excluded from the court’s investigation.

ICC judges paved the way for an investigation of war crimes when they decided a month ago that the court has jurisdiction over the situation due to the fact that Palestine is a member of the court.

Bensouda, who is due to be replaced by Karim Khan in June, said on Wednesday that there is a “reasonable basis” for believing that crimes were committed by members of the IDF, Israeli officials, Hamas and other Palestinian terrorist groups.

Although Palestinian leaders welcomed the investigation, Israel rejected it.

“The ICC lacks jurisdiction over this matter,” said attorney general Avichai Mandelblit in a statement on Thursday.

Mandelblit reiterated that Israel and several other nations argued that the ICC has no jurisdiction over the case because Israel is not a member and Palestine is not a state. Hungary joined Israel and the United States on Thursday in opposing the investigation, saying it disputes the court’s jurisdiction in Palestinian areas.

Mandelblit also argued that Israel itself “has implemented a robust system for examining alleged violations of international law”.

“There is no place for the ICC to intervene in matters that are under the jurisdiction of the State of Israel,” said Mandelblit. “” The chief prosecutor’s choice to open an investigation against the State of Israel, a democratic and law-abiding nation, undermines the legitimacy of the court’s work. “

The investigation will take several years to complete and any charges or arrest warrants are likely to be kept confidential.

But the ICC’s action has raised fears that former Israeli soldiers and politicians may be subject to international arrest warrants.

Sharvit Baruch said he talked to the soldiers about the potential threat.

“They are really concerned, they are afraid of being arrested tomorrow,” she said. “I tell them not to worry, that they were just low-ranking soldiers … but the fear is there.”

More than a decade ago, Israel boycotted a UN committee that investigated Operation Cast Lead 2008-09, a 22-day conflict in Gaza.

Published in late 2009, the Goldstone Report accused Israel and Hamas of war crimes and “possibly crimes against humanity”.

The report alleged that Israel deliberately targeted civilians – an accusation that its author, Richard Goldstone, publicly dropped after the report was published after, he said, learned the whole story. Jewish groups and most of the United States Congress rejected the report as a unilateral attack on Israel.

Now, as then, there are advocates for a more proactive line with investigators and lawyers.

“It looks like Israel will have excellent arguments to refute the war crimes allegations, as long as those arguments are actually presented,” wrote commentator Ben-Dror Yemini in Yediot Aharonot. “Israel has erred in the past by failing to present its arguments to the Goldstone Committee. We need to wait for Israel to find a way not to repeat this mistake. “