The ICC’s decision on Israel is a defeat for the politics of impunity

Sovereign states often violate their own laws as well as international law with the belief that there will be no accountability. However, the recent International Criminal Court’s jurisdiction decision against Israel, appears to be a serious warning for not only the Jewish state, but also for the sense of impunity other states might assume they possess. 

In its landmark decision, the ICC ruled on Friday that the court’s prosecutor, Fatou Bensouda, a Gambian lawyer, could investigate possible Israeli war crimes committed during the country’s Protective Edge Operation of 2014 conducted in Gaza, a Palestinian enclave. The prosecutor will also look at other allegations of Israeli war crimes committed when Tel Aviv used disproportionate force in response to the Palestinian Gaza Right of Return Protests in 2018. 

Lastly, the ICC decision paves the way for the investigation of Israel’s expanding illegal settlement activities across occupied territories as well as other problematic conduct.

“The decision is welcome because it shows that the ICC will not be intimidated with respect to criminal allegations directed at countries protected by Western geopolitics,” says Richard Falk, a well-known international law professor, referring to Israel, which is not party to the ICC, located in the Hague, the Netherlands. 

“It is also important as an affirmation of ICC jurisdictional authority for crimes committed on the territory of Parties to the Rome Statute (that is, the ICC Treaty) even if the perpetrators of the crimes were citizens or officials of a State that was not a Party, and had never given its consent to be bound by the treaty,” Falk tells TRT World. 

Victory for international justice

Israel is not a party to the ICC treaty but the Palestinian Authority (PA), whose statehood and sovereignty has been subject to intense dispute across the international community, is. As a result, the ICC’s majority judges thought that the court could investigate Israeli actions across occupied territories as well as the acts of Palestinian groups like Hamas. 

“In this sense, it is a victory for international criminal law accountability and a defeat for the geopolitics of impunity,” says Falk. 

“The ICC is only a court of last resort, but it has a critical role to play to backstop justice when there is impunity nationally,” Balkees Jarrah, Human Rights Watch’s associate director for international justice, tells TRT World. 

Antony Loewenstein, an independent author and film-maker who lived in Jerusalem from 2016-2020, is also happy about the ICC decision. 

"The recent ICC decision is a welcome move by an international body with a mixed record of bringing justice to victims of conflict,” he says. 

“Largely ignoring crimes by the Western powers since its inception, we're yet to see any trials of Western leaders, military generals or soldiers who caused carnage in Afghanistan, Yemen, Iraq or beyond, the ICC has finally decided to grow a backbone and investigate the gross violations of international law in Gaza and the occupied West Bank,” Loewenstein tells TRT World. 

The ICC decision also marks a victory for international groups fighting for the legal recognition of human rights violations committed across Palestine for many decades. 

Since 2016, Human Rights Watch (HRW) has called on the ICC to pursue “a formal Palestine investigation” given strong evidence that serious war crimes have been committed there, according to Jarrah. 

“Impunity for these abuses remains the norm and highlights the importance of the ICC taking action as a court of last resort in situations like Palestine where recourse to domestic justice has been foreclosed,” says Jarrah. 

Israel will fight the ICC

The decision has shocked the Israeli establishment, but mostly its Prime Minister. Benjamin Netanyahu, the country’s longest serving leader, could be a person of interest in the investigation.  

“When the ICC investigates Israel for fake war crimes, this is pure antisemitism,” said Netanyahu, using antisemitism once again as a tool to prevent any discussion or investigation over the Israeli state’s atrocities. 

“We will fight this perversion of justice with all our might,” Netanyahu said.

Yesterday, Netanyahu appeared in a domestic court, claiming his innocence against several corruption accusations. He will face another election challenge, an unprecedented fourth election in two years. 

Despite his continuing protestations of innocence, his days may well be numbered in the prime ministry. 

Falk sees a war crimes conviction in the Hague as a distinct possibility. 

“There is little doubt in my mind, given the availability of abundant evidence and credible witnesses, that an ICC investigation would produce indictments, convictions, and arrest warrants,” the international law professor assesses. 

“On the basis of preliminary ICC investigations the alleged perpetrators of the crimes include Netanyahu, as well as other political officials and military commanders and IDF personnel,” he says. 

Despite the reality of a long legal battle, Jarrah, HRW’s leading legal counsel, also thinks that the ICC case might lead to various convictions. 

“Criminal liability before the ICC can apply not only to those who commit crimes, but also as those who give the orders and those in a position of command who should have been aware of the abuses and failed to prevent them or to report or prosecute those responsible,” adds Jarrah. 

But Israel is unlikely to cooperate with the ICC. Israeli sources have already indicated that the country’s defence establishment has prepared “a list of several hundred senior Israeli officials” who will potentially be targeted by the investigation. 

Israeli ‘intimidation’ campaign

Right after the decision, the Israeli state resorted to an intimidation campaign to dissuade ICC judges and the prosecutor Bensouda, sending a classified cable across dozens of its diplomatic posts with instructions to fight the decision, according to a media report.

The “Urgent” cable asked Israeli ambassadors to persuade respective top officials in the countries in which they are posted to issue public statements expressing opposition to the decision, putting pressure on the court and Bensouda. 

“We ask that (governments) send a discreet message to the prosecutor asking her not to move forward with the investigation against Israeli and not give this case a high priority”, the cable said.

Israel’s campaign has already swayed the US and Australia, two staunch allies of Tel Aviv. Despite the new Biden administration, Washington has shown again that nothing will change in its unconditional support for Israel. 

"The U.S. objects to the ICC decision regarding the Palestinian situation,” said the US State Department spokesman Ned Price.

“We will continue to uphold President Biden’s strong commitment to Israel and its security, including opposing actions that seek to target Israel unfairly,” Price added.

Jarrah urges ICC member countries to continue “their support for the court and stand ready to protect the court’s mandate against any action to undermine the court’s independence and block a Palestine investigation.” 

“They must band together to stand with victims and defend the court from unprincipled attacks. The ICC’s member countries need to ensure the ICC remains on course so that no one, even from the most powerful countries, is above the law,” she adds. 

Both Falk and Loewenstein hope the Israeli smear campaign against the ICC will fail.

“I certainly hope that this effort by Israel to discredit the ICC will fail, and will have the opposite effect of demonstrating the need for a strong and independent international criminal tribunal ready to extend accountability to the strong and weak alike,” says Falk. 

“Even if this victory for accountability is symbolic, it is a great victory for international criminal justice, and points the way toward the development of a genuine Global Rule of Law that applies relevant norms to all States and all individuals. The fury of attacks on the ICC by leading Israeli politicians bear witness to the fact that the law matters even if its implementation is problematic,” observed Falk. 

“Israel's occupation of Palestine is one of the longest occupations of the modern age and the Jewish state enjoys almost complete diplomatic and military impunity,” says Loewenstein. 

The Palestinian Authority have celebrated the decision. 

"This decision (of the ICC) is a victory for justice and humanity, for the values of truth, fairness and freedom, and for the blood of the victims and their families," said Palestinian Authority (PA) Prime Minister Mohammed Shtayyeh, according to the PA’s official Wafa news agency.

According to Falk, the ICC decision will empower Palestinians “on the moral and legal high ground” in their struggle to attain recognition for their long denied rights. 

Does Bensouda have enough time?

The case is complicated and could lose its way in the ICC for several reasons. 

First of all, ICC prosecutor Bensouda’s term will end in June and the ICC has designated no replacement yet. It appears that there is not enough time for a difficult investigation like the one Bensouda has long sought to pursue.

Nick Kauffman, a defence attorney at the ICC and an Israeli legal expert, thinks that Bensouda’s tight timetable may persuade her not to take action. 

“It remains to be seen whether she will go ahead with the investigation so near to her replacement and whether the new prosecutor will feel motivated to proceed with such controversial investigations,” Falk concludes.