Ben-Dror Yemini
Ben-Dror Yemini
Photo: Ynet
The ICC at The Hague

Israel cannot repeat past mistakes with ICC

Opinion: While Jerusalem has a solid defense against the claims at the center of the Hague investigation, its refusal to recognize the court's jurisdiction or sign the Rome Statute could serve to strengthen moves aimed at branding Israel a criminal state

Ben-Dror Yemini |
Published: 03.04.21, 23:36
The announcement that the International Criminal Court is launching an investigation into Israel’s alleged war crimes is of no surprise.
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  • It is merely the latest step in the process to paint Israel as a criminal nation, which began in the 2001 World Conference against Racism in Durban, South Africa.
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    The ICC at The Hague
    The ICC at The Hague
    The ICC at The Hague
    (Photo: AP)
    While in the past, it was Jews all around the world who were persecuted in this way, today it is the Jewish nation that is being persecuted. And while not all those involved are doing it for anti-Semitic reasons, the purpose remains clear: to shame and delegitimize Israel in the eyes of the world.
    The investigation itself came as no surprise. What is surprising is how vigorously the ICC prosecutor Fatou Bensouda is working to ensure the investigation takes place.
    Bensouda is set to depart in June and her replacement has already been appointed. And yet she has decided to partake in a witch hunt against Israel that began way back in 2001.
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    ICC Chief Prosecutor Fatou Bensouda
    ICC Chief Prosecutor Fatou Bensouda
    ICC Chief Prosecutor Fatou Bensouda
    (Photo: AFP)
    Investigations into war crimes have been launched against a myriad of countries - against many of whom evidence of war crimes was indeed found.
    The latest of these countries is the U.K., which the court found to be responsible for various war crimes committed in Iraq between 2003 and 2009.
    And yet, the court decided not to persecute.
    Why? Because the ICC elects not to intervene when the state in question has an independent and functioning judicial system.
    Although Britain's courts have been nothing if not lenient towards soldiers who have been charged with such acts, for Bensouda it was enough to conclude that no further proceedings were necessary.
    Israel’s courts and prosecutors are harsher on soldiers than the U.K., so even if a conclusion is reached that war crimes were committed, it does not mean that indictments will be filed.
    Let us not forget that Hamas’ attacks on Israel’s civilians will also be included in the investigation, and Hamas, as we all know, happily encourages its fighters to harm the innocent.
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    ארכיון 2014 - רקטה שנפלה בגן יבנה
    ארכיון 2014 - רקטה שנפלה בגן יבנה
    A rocket fired from Hamas-ruled Gaza into Israel during the 2014 war
    (Photo: Reuters)
    The ICC investigation is expected to focus on three subjects:
    1. The 2014 Gaza war and the events that led up to it, primarily the kidnap and murder of three Israeli teenagers a few days beforehand.
    2. The protests on the Gaza border that began on March 30, 2018. During these protests, the Palestinians claim, the IDF fired indiscriminately at peaceful civilians. In practice, these demonstrations have been instigated by Hamas and Israel will have no difficulty in proving that most of those who died during these protests were terrorist operatives.
    3. Israel's settlements in the Palestinian territories. This is the one for which Israel’s defense might falter somewhat. While Israel has a battery of international legal experts who can prove nothing illegal was done in this regard, the verdicts of the High Court of Justice in Jerusalem might not be enough to placate the tribunal at The Hague.
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    ארכיון 2014 - כיפת ברזל מעל שדרות
    ארכיון 2014 - כיפת ברזל מעל שדרות
    The Iron Dome missile defense system intercepts a rocket fired from Gaza above the southern city of Sderot in 2014
    (Photo: Reuters)
    There are also several elements within Israel that may prove to be a nuisance during the investigation. These include the B'Tselem organization, which claimed that "Hamas is not responsible and can not be held responsible for the damage that Israel caused the civilian population in the Gaza Strip.”
    Another is the "Breaking the Silence” organization. This organization was the subject of a lawsuit filed by several soldiers who took part in the 2014 war and who accuse it of spreading false testimonies that they took part in the unlawful shooting and subsequent live burial of an innocent Palestinian man.
    And while this claim has been debunked by the soldiers’ body cams, such "testimonies" from Israeli organizations may hamper the state’s ability to defend itself.
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    צעדת השיבה
    צעדת השיבה
    Palestinians riot at the Gaza border during a protest
    (Photo: EPA)
    Still, it seems that Israel would have no problem rebutting any allegations of war crimes. If it presents its evidence that is, for Israel does not recognize ICC jurisdiction and is not a signatory to the Rome Statute.
    This led to Israel’s response being ignored when in 2009 the United Nations initiated the Goldstone investigation into alleged war crimes during the 2008-2009 Gaza war.
    One can only that hope Israel does not make the same mistake again.
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