Prof. Eytan Gilboa
Prof. Eytan Gilboa
צילום: חגי דקל ואבי חי
The International Criminal Court

Israel must gear up for battle against ICC

Opinion: As court lies in wait for Jerusalem to extend sovereignty over West Bank lands in order to launch war-crime probe, Washington's support can prove beneficial for both parties as it faces own probe threat

Eytan Gilboa |
Published: 05.19.20 , 15:25
During his visit last week, U.S. Secretary of State Mike Pompeo warned against an investigation by the International Criminal Court (ICC) which is meant to allow its chief prosecutor, Fatou Bensouda, to probe alleged war crimes by Israel in the Gaza Strip and the West Bank.
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  • Pompeo said that the ICC's decision to prosecute Israel is proving that the court "is a political body, not a judicial institution," threatening an investigation against Israel "will have consequences."
    בית הדין הפלילי הבינלאומי האגבית הדין הפלילי הבינלאומי האג
    The International Criminal Court
    (Photo: Shutterstock)
    Pompeo's warning and its timing stem from several reasons, among them the judicial validity of the probe.
    First, only sovereign nations, which the Palestinian Authority is not, could file a complaint to the ICC.
    Second, Israel and the U.S. are not signatories of the Rome Statute, which created the institution.
    Third, the ICC was founded in 2002 to investigate severe crimes, such as genocide, perpetrated by nations that do not internally probe such claims.
    The Israeli-Palestinian situation does not apply to any of these criteria.
    The U.S. Secretary's statements come amid a petition filed by Bensouda during the pre-trial process to authorize the probe, which the three judges panel is going over. It is safe to assume that the United States' warning is meant to influence their decision.
    This possible war crime probe against Israel is not unique when it comes to the ICC's history.
    In November 2017, Bensouda announced it will begin an investigation into possible war crimes by the United States in Afghanistan.
    U.S. Secretary of State Mike Pompeo and Prime Minister Benjamin Netanyahu U.S. Secretary of State Mike Pompeo and Prime Minister Benjamin Netanyahu
    U.S. Secretary of State Mike Pompeo and Prime Minister Benjamin Netanyahu
    (Photo: GPO)
    She undertook a similar process to the one against Israel. Following her request by the judges' panel to authorize her investigation, Washington furiously reacted, canceling her visa to the U.S. and threatening to put her and the judges on trial while confiscating her assets.
    The U.S. administration added that if the ICC dares to arrest any American citizen – it will be resorted to using force to free them.
    The threats did their job and the judges' panel barred Bensouda from continuing with her investigation but did eventually accept an appeal, allowing her probe against the U.S. to resume.
    For these reasons, Pompeo's last week's statements were not made only to chive the ICC for its investigation against Israel, but also against the U.S.
    תמונתה של פאטו בנסודהתמונתה של פאטו בנסודה
    ICC chief prosecutor Fatou Bensouda
    (Photo: AP)
    If the judges' panel does approve Bensouda's probe, it might lead to Israel's prime minister, cabinet, army officials, and senior bureaucrats being summoned to an investigation under warning.
    If they decline the order, she will be able to release an arrest warrant against them.
    On paper, the 122 nations signed on the Rome Statute are obligated to comply with such order, which would cause immense damage to Israel economically and diplomatically.
    At his inauguration speech at the Knesset on Sunday, Prime Minister Benjamin Netanyahu said, "we will fight the ICC's attempt at accusing IDF soldiers of war crimes."
    Netanyahu's address specifically comments on a clause in the prosecution paper that defines Israel's West Bank settlements a war crime, all the while talks over unilateral annexation of territory in the region could damage in the international effort orchestrated by Jerusalem through friendly nations to halt the investigation.
    Israel alone cannot battle a politically motivated agency whose prosecutor's investigation is already predetermined.
    מייק פומפאו נפגש עם גבי אשכנזי בזמן ביקורו בישראלמייק פומפאו נפגש עם גבי אשכנזי בזמן ביקורו בישראל
    Foreign Minister Gabi Ashkenazi meeting with U.S. Secretary Pompeo
    (Photo: U.S. Embassy in Israel)
    Therefore, the assistance of the U.S. and other nations is critical. There is no assurance that Donald Trump will be reelected as president in November or what will be the balance of power between Democrats and Republics in Congress.
    America's help against Bensouda and the ICC is important, but it is not enough.
    Israel must launch a long and hard and campaign, using all the diplomatic and judicial tools at its disposal.
    Former IDF chief and new Foreign Minister Gabi Ashkenazi could be one of the first people to be summoned by the court - a good enough reason for him to focus his efforts on this issue.

    Prof. Eytan Gilboa is an expert on international relations and a senior research associate at the BESA Center for Strategic Studies, Bar-Ilan University.
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