Does the ICC war crimes investigation threaten Israel?
Will the International Criminal Court (ICC) at The Hague launch a criminal investigation into the State of Israel for war crimes violations? What are the possible ramifications of the court’s decision?On October 18, Shurat HaDin, the Tel Aviv-based human rights organization that specializes in the legal and economic struggle against terrorist organizations, hosted a webinar on the subject with guests Joseph Lieberman, former US senator from Connecticut, Luis Moreno Ocampo, former chief prosecutor of the ICC, and Danny Danon, former Israeli permanent representative to the UN. The webinar was moderated by Adv. Nitsana Darshan-Leitner, president of Shurat HaDin.
Darshan-Leitner provided background to the creation of the court and its rulings on Israel. The ICC was created by the Rome Statute, which established the court in 1998. Some 128 countries have signed on as member countries of the ICC, which meets in The Hague in the Netherlands. The court has jurisdiction to prosecute individuals for crimes of genocide, crimes against humanity, war crimes and the crime of aggression. Darshan-Leitner explained that while Israel initially supported the idea of an international court, it was concerned that it could become an instrument that could be used against it. Israel, the United States, and numerous other countries have not signed nor agreed to the Statute and have no legal obligations to abide by the ICC’s decisions.After Operation Cast Lead, the three-week IDF operation in Gaza that began in late December 2008 and concluded in January 2009 in response to a prolonged period of terrorism and missile attacks on Israeli towns, the Palestinian Authority approached the ICC, accusing Israel of targeting civilians in the campaign. Additionally, they claimed that Israel’s building homes in communities in Judea and Samaria violated the Geneva Convention and constituted a war crime.
Luis Moreno Ocampo, Chief Prosecutor of the ICC at the time, responded that the PA could not bring their complaint to the court since it was not considered a state. The issue was discussed for an additional three years, and in 2012, the United Nations upgraded the Palestinian Authority to an observer state. In 2015, the Palestinian Authority signed the Rome Treaty and was accepted as an ICC member. In 2019, the court’s chief prosecutor, Fatou Bensouda, opened investigations of Israel for alleged violations in Operation Cast Lead and of the United States for possible violations in Afghanistan, even though both countries are not ICC members and have their own independent judicial systems.During the webinar, former Senator Lieberman pointed out that both Israel and the United States are societies that uphold the rule of law.
“On the face of it,” he said, “the ICC would appear to be something that ‘rule of law countries’ would support.” Nevertheless, he said, the ICC has become intensely politicized, has discriminated against countries that support the rule of law and has operated in an unlawful way.Darshan-Leitner added that part of the court’s charter is that it will not become involved in legal issues with countries that have their own independent legal systems. The United States prosecutes US soldiers who have committed war crimes, as does Israel. Therefore, the court cannot intervene in any war crimes case regarding these two countries.
Darshan Leitner explained that though Israel is not a signatory to the Rome Statute, and is therefore not bound by any ruling of the court, most of the European and Scandinavian countries are members of the court and are legally obligated to honor the court’s rulings. Therefore, if the ICC rules that IDF soldiers committed war crimes, any Israeli who served in the IDF in Operation Cast Lead who would be traveling in countries that are members of the court, such as Canada, Australia and New Zealand, for example, could be subject to arrest. Additionally, El Al would not be permitted to land in any countries that are signatories to the court.Shurat HaDin, said Darshan-Leitner, has been very active in attempting to counter the potential investigation by the ICC.
“In 2015,” she said, “we filed complaints against Hamas leaders Khaled Mashal, Ismail Haniyeh, Yahya Sinwar, detailing their personal war crimes. We filed complaints against PA President Mahmoud Abbas, in his capacity as PLO head, for firing rockets from Gaza into Israel in the past.”The organization also brought testimony of victims of Palestinian terror attacks illustrating the Palestinian Authority’s “pay to slay” policy that pays bounties to families of terrorists who have murdered Israelis.”‘Pay to slay’ is a gross violation of international law, yet not on the ICC’s agenda,” said Darshan-Leitner. “I think that the court is biased against Israel. Despite the fact that we raised severe crimes that had been committed, all of our communications were ignored.
“With regard to the court’s possible decision on Israeli settlements, Darshan-Leitner said that these issues are parts of a political conflict and are for the countries to negotiate, not for the courts to decide. She is skeptical of the court’s impartiality, saying, “There is no way to control a court to be non-political. The judges can’t put ideology aside.”
ALSO PARTICIPATING in the webinar was Luis Moreno Ocampo, who served as the ICC’s first prosecutor from 2003 to 2012. Ocampo traced the development of the concept of an international court, explaining that the Nuremberg Trials of the Nazi leadership, held in 1945-46, was the first modern international tribunal. He suggested that the court’s position provides opportunities for Israel to think creatively and invent a solution that could remove the court’s need to rule in the case. Darshan-Leitner was skeptical about the prospect of renewing negotiations with the PA, saying that Israel had been trying this since the 1993 Oslo Accords with little success.Danny Danon, who recently completed his term as Israel’s permanent representative to the UN, was equally skeptical that the ICC prosecutor would bother investigating war crimes in the wars that have been raging in Syria and Yemen.
“It will never happen because no one is pushing for it. In our case, the Palestinians and some European countries are pushing it. We have to be more vocal. We cannot be silent,” he said.
Danon mentioned that the United States has imposed sanctions on Bensouda, denying visas to the US to the judges and prosecutors, and while Danon acknowledged that Israel does not have the same power as the US, he said, “I am asking our friends in the United States to apply the same pressure on the ICC when it comes to Israel.”Summarizing the position of Shurat HaDin, Darshan-Leitner said, “Almost as soon as the ICC opened its doors in 2003, the enemies of Israel and the United States used the court as a tool for political confrontation and settling disputes through prosecution while harassing political and military leaders. Our position is that the ICC is not the one to decide what the borders of the Jewish state should be, whether the Palestinian Authority can be a state, or any of the political issues that are negotiable between Israel and its enemies, allies and neighbors.”
This article was written in cooperation with Shurat HaDin – Israel Law Center.