The ICC and Israel: An Introduction to Substantive Issues

On the eve of the Israeli elections, the lawfare war with the Palestinians has heated up. On Monday, I wrote, “the Palestinians had invited the probe, including an inquiry into the conduct of Palestinians, and pledged full cooperation with the court. Minister of Foreign Affairs and Expatriates of Palestine, Riyad al-Maliki, met with the Chief Prosecutor to establish how the two bodies would collaborate ‘to protect the interests of the victims and prevent impunity’.”

The Israeli response was quickly forthcoming. Al-Maliki’s entourage was questioned by Israel’s Shin Bet upon their return as they crossed the Allenby bridge from Jordan. Al-Maliki himself was stripped of his special travel permit, his VIP travel pass made available to senior Palestinian officials. The travel permit was not just for travel abroad; with the pass, Palestinian Authority officials and staff can pass through Israeli checkpoints with ease. In this case, the entourage was delayed half an hour. The PA spokesperson claimed that, “Israel is unable to solve cases through the law, but instead resorts to a policy of intimidation, sanctions and threats.”

The Palestine’s Permanent Representative to the ICC, Rawan Sulaiman, insisted that legal efforts to seek justice for Palestinians will continue despite Israeli intimidation. “We will not be subject to intimidation as we seek justice for victims of atrocity crimes committed in Palestine…Israel, the occupying power, has consistently been obstructing access to justice and doing all within its power to avoid any form of accountability for the crimes that continue to be committed in the Occupied Palestinian Territory,”

However, an article in the recent Foreign Affairs (Hussein Agha and Ahmad Samih Khalidi, “A Palestinian Reckoning: Time for a new beginning,” March/April 2021) argued that, “The PLO’s default position is to appeal to international law, hoping that the international community can or will act on its behalf. That appeal has been one of the more enduring delusions of the Palestinian leadership, ever since the struggle for international recognition replaced the presumption of revolutionary legitimacy and diplomacy took the place of armed struggle.”

The article continued. “In reality, international law has not been a dependable friend to the Palestinians (from the Balfour Declaration in 1917 to the UN Partition Plan in 1947 to UN Security Council Resolution 242 in 1967, the cornerstone of the peace process). While it has lent the Palestinians a hand by recognizing their claim to territories occupied by Israel after the 1967 war and their right to statehood, and by serving as an increasingly fragile dam against Israeli settlement and annexation policies, international law has made a difference only when the outside forces that purport to uphold it—especially the permanent members of the UN Security Council—are prepared to in fact do so. There is not much evidence that this is the case today.”

The article argued that events are not moving in favour of the Palestinians, notwithstanding all the noise and rhetoric about international law. “The value of international law is ultimately beholden to the prevailing political environment and the stances of its major sponsors.” When it comes to international criminal law, this is totally lacking. “The Palestinians’ conflict with Israel is not a legal dispute. International law has not helped solve conflicts in Crimea, Cyprus, Kashmir, Kosovo, or Nagorno-Karabakh. It was not international law that compelled Israel to withdraw from the Sinai Peninsula, southern Lebanon, or Gaza; it was a combination of power politics and diplomacy. Yet many Palestinians cling to an uninformed misapprehension of international law’s potency.

Nevertheless, Israel engages with the Palestinians on the issues of international criminal law, though not necessarily in court. The IDF’s Chief of Southern Command responsible for security against the Gaza Strip, Israel Defense Forces Chief of Staff Aviv Kohavi, condemned the ICC’s investigation into Israel over alleged war crimes. He defended the IDF. “The Hague is living in the old world. In the Middle East, there is a new area of terrorism.” Assuming even that in the twenty-first century we are living in a new era of terrorism, does not the rule of law with respect to international conflict persist? After all, Israel still professes to be a rule-of-law state. And the rule of law prohibits war crimes, crimes against humanity, genocide and aggression. Israel conducts its own probes and has yet to decide whether it will cooperate with the ICC investigation on jurisdictional grounds.

Israel’s Prime Minister Netanyahu has vowed to fight “ICC’s perversion of Justice” and called its decision to investigate Israeli war crimes as “outrageous.” In terms of diplomatic support for ICC’s lack of jurisdiction, Israel seems to have a wide spectrum of diplomatic support.  For example, US Secretary of State Antony Blinken opposed the ICC decision to open a full war crimes probe against Israel on the following grounds:

  • The ICC has no jurisdiction over this matter
  • Israel is not a party to the ICC
  • Israel has not consented to the Court’s jurisdiction
  • The Palestinians do not qualify as a sovereign state and, therefore, cannot participate in the ICC.

That position was echoed by Vice-President Kamala Harris in the first call she made to Netanyahu. However, in the expansionist view of international law and the jurisdiction of the ICC, Marcella David wrote, “We no longer live in a world where narrow conceptions of jurisdiction and sovereignty can stand in the way of an effective system of international cooperation for the prevention and control of international and transnational criminality.” The fight over expanded ICC jurisdiction has both critics and defenders. In the end, the court of public opinion will make its own determination based on the substantive issues much more than the formal debates over jurisdiction.

What about the substance of the charges leveled against Israel?

The main one is a probe into Israeli conduct in the war begun on 13 June 2014 in Gaza. Given that lack of just cause is a war crime, it is certainly peculiar that the ICC probe starts on 13 June 2014 and not on 12 June when three Israeli youths – Eyal Yifrach, Gilad Shaer and Naftali Frenkel – were kidnapped in Israel and murdered in the West Bank. Did Israel have a justifiable casus belli? It is hard to see how the cause can be investigated if the probe starts the day after the alleged immediate instigation for the war, let alone the provocative violent acts that preceded that event. As the families of the victims wrote, “Had Prosecutor Fatou Bensouda truly wanted to investigate war crimes and crimes against humanity, she would have instructedd [the court] to open a probe on the great crime that took place just the day before, on June 12, when our three children were kidnapped — three Jewish boys who only wanted to come home safely,” The UN Charter does not impair the inherent right of an individual or collective self-defence if an armed attack occurs against a Member of the United Nations. (UN Charter Article 51) The kidnappings were simply the last straw in a series of provocative violent actions launched from Gaza.

It is no surprise, therefore, that overwhelmingly the accusations against Israel of war crimes in the 2014 Operation Protective Edge are concerned with the conduct of the war and, more particularly, the protection of civilians by the IDF in the conduct of the war, and not the cause of the war itself.  After all, as is generally accepted, the tension between military necessity and humanitarian concerns is “the great dilemma” in international humanitarian law. The laws applicable to international war crimes require that there not only be acceptable justifications for the resort to armed force (jus ad bello), concerns with respect to the conditions that make the use of war permissible (this is primarily a political responsibility), but that jus in bello concerns, the rules governing how a war should be conducted, has to be a major focus. This is largely a military responsibility. Benny Gantz, now a prominent Israeli politician who served as IDF chief between 2011 and 2015 would be a target of such a probe.

In that respect, both the ‘Hague’ law, primarily concerned with the means, methods and weaponry of warfare, in this case took second place to the overtly ‘humanitarian’ concerns of ‘Geneva’ law focused on the protection of civilians, though unlike the 2018 border protests, objections to the weapons used were also an issue. Certain weapons, because of their devastating physical effect, uncontrolled scope or environmental impact are forbidden – such as the use by the Syrians of chemical weapons against their own civilian population in violation of both the Hague and the Geneva rules.

Let me offer three different types of cases possibly applicable to the 2014 Gaza War:

  • the 1907 Hague Convention prohibiting “[t]he attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended” Convention (IV)
  • the convention requiring combatants to take “all necessary steps..,to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments [and] hospitalsnot then being used for military purposes. (Article 27)
  • a commanding officer is required to “do all in his power” to alert the relevant authorities before commencing a bombardment that is not an assault. (Article 26)

Note that all three are qualified. Bombardment is restricted if buildings are undefended. Certain buildings are off limits as long as they are not being used for military purposes. Where an attack is not an assault, prior notice is required. When examining many of the accusations of war crimes, these qualifications are very often omitted. In dense urban warfare, as in the Gaza Strip, it is difficult to identify a building that was not defended. Hospitals were used to house military planners and personnel. And there is no question that Israel dropped warning leaflets urging civilians to get out of the way even when there were planned assaults.

So why the probe?

One reason is that countries conducting their own probes into the conduct of their troops, and even the non-military justice system itself, has often proven to be driven by political rather than legal considerations. For example, in the case of Demjanjuk, a former and very aged Ukrainian accused of war crimes in WWII and returned to Israel for trial (Demjanjuk v. Petrovsky), Israeli courts eventually determined that government lawyers pressing for extradition of Demjanjuk had perpetrated a fraud upon the court by withholding evidence highlighting the flaws of the identification witnesses relied upon. Counsel concluded that the Israeli justice system was purposefully subverted in an effort to make a political and moral statement.

On the other hand, specialized criminal courts were set up prior to the creation of the ICC. The U.N. Security Council established the International Criminal Tribunal for the Former Yugoslavia (“Yugoslavia Tribunal”) with jurisdiction to investigate possible war crimes committed by Bosnian Serb, Muslim, and Croatian forces in the former Yugoslavia, and the International Criminal Tribunal for Rwanda (“Rwanda Tribunal”) to investigate the crime of genocide. These courts were deemed insufficient because of their reliance on ad hoc arrangements. The creation of the ICC was intended to cure that problem, only to encounter others – the claim of overstretch and the charge of politicization and making decisions based on political rather than legal considerations.

On the other hand, testimonials from a number of soldiers who fought in Gaza at the time suggest that the actions of some soldiers and perhaps even their orders did not live up to Bibi’s description of the IDF as “the most human army in the world”. Some 2200 Palestinians, including many women and children, were killed in that war versus 66 Israeli soldiers and 7 civilians. However, comparing numbers killed and injured to determine proportionality is not the criminal law, but only whether the military means were proportionate to the military objective.  Thus, there are biases in applying the law and possible biases in defending soldiers against such charges.

However, the substantive issue should not be trust or distrust in either direction, but clarification of the applicable law and whether the evidence available warrants a criminal prosecution. As I have written before, and which made need repetition and clarification again, the authority for an investigation can come from the UN Security Council, at the request of a member when the event in question took place on territory claimed by the member, and from the Office of the Chief Prosecutor for the Court when endorsed by a requisite tribunal. This is the issue of jurisdiction that I discussed in a previous blog. There is also the other dimension of the jurisdictional debate that I also already raised over whether the state itself has both the will and the competence to conduct such an investigation and whether the ICC must conduct a pre-investigation to make such a determination.

Those jurisdictional disputes inevitably re-emerge when exploring the substantive charges.

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