In-depth: The decision by the Hague on Friday at the moment only a psychological impact and is a public relations blow to the country, but experts warn it is no small matter and that any Israeli action on the West Bank may now be litigated
In 2016, Prime Minister Benjamin Netanyahu said he had decided to appoint Avichai Mandelblit as attorney general because he was the best person to defend Israel against future actions from the International Criminal Court.
Netanyahu and Mandelblit were close at the time and the latter was qualified in International law and had dealt with matters pertaining to the ICC during his tenure as the Military Advocate General.
The prime minister believed that Israel’s highly respected judicial system and especially its Supreme Court would be a barrier against any attempt by the ICC to advance prosecution of Israelis.
This was before Netanyahu turned on Israel’s law enforcement and judiciary in his efforts to fight the criminal charges for corruption that he now faces.
The decision Friday by the ICC to allow an investigation of possible war crimes committed by Israel during the 2014 Gaza war and illegal settlement activity is seen as a dramatic one in diplomatic and judicial circles.
The Palestinians asked the court to look into Israel’s actions during the 2014 war against terror groups in the Gaza Strip and its construction of settlements in the West Bank and annexed East Jerusalem.
For now, the decision only poses a psychological impact and a public relations nightmare for Israel, but experts warn this is no small matter.
Senior sources in Israel’s judiciary say that the country is now headed down a path to eventual ICC rulings against its politicians and military officials.
Political observers say there will be no imminent prosecution of Israel or a slew of arrest warrants issued against its leaders or IDF brass, but the government can expect legal action in the international court over any construction in West Bank settlements or demolition of homes belonging Palestinians who have committed deadly acts of terror.
“It is unprecedented that every action taken on the West Bank can now be investigated by the court,” an official told Ynet.
Israel and the United States never joined the International Criminal Court after its establishment in 2002.
Jerusalem was quick to understand it could find itself in the dock over charges of war crimes due to its settlement policies.
Meanwhile the U.S. was concerned were that actions taken by its military in Afghanistan may bring lead to ICC action against them.
Until now, all attempts to prosecute Israel in the ICC have failed, not least because of its judicial system, which is seen as independent and able to investigate any allegations of crimes in the territories on its own.
The ongoing support of the United States, especially during the administrations of presidents George W. Bush, Barack Obama and Donald Trump was also helpful – although the latter threatened action against the court should the U.S. be investigated in any way.
The Biden administration’s position, though, is still unclear. The United States issued a condemnation of the ICC decision on Friday, but some officials in Jerusalem worry that the American defense of Israel may in future depend on willingness to make certain concessions.
In practical terms, officials say, ICC chief prosecutor Fatou Bensouda has not yet decided to launch her investigation into possible Israeli war crimes. She had only requested and now received authority from the court to do so.
“The ball is in her court,” the officials say, and since she is set to leave her post this summer, she is likely to make the decision to investigate alleged Israeli crimes her legacy.
Other sources chose to be more optimistic and say she may leave that hot potato for her successor, who may be persuaded to refrain from the move.
Prof. Yuval Shany of the Israel Democracy Institute says there is no imminent action that will be taken by the court.
“The prosecutors at the Hague will first have to decide if an investigation by the IDF of its own conduct in 2014 is enough to avoid investigating charges in the Hague,” he says.
Besouda will have to approach Israel and demand a preliminary hearing, Shany says.
“A similar case involving British soldiers who were accused of war crimes in Iraq lowered the bar enough to indicate a prosecution of military personnel by a military court in Israel might negate the need for further action,” he says.
Israel’s judicial establishment has been preparing for possible scenarios of ICC action for the past decade, especially the possibility that members of past and current governments may have international arrest warrants issued against them.
But it is also cognizant of the fact that legal arguments apart, Friday’s decision by the ICC leaves many question marks as to Israel’s future as far as criminal indictments for war crimes are concerned.
As reported by Ynetnews