On the way to investigating “war crimes” against Israel? The decision and its meaning

According to the plaintiff in the foundation, during Operation Resilient Cliff, both Israel and Hamas and other Palestinian armed organizations committed war crimes. It does not explicitly state that such crimes were committed, but repeatedly states that there is a “reasonable basis to believe” that they were committed.

In the Israeli context, she wrote, the investigation shows that the IDF carried out “disproportionate attacks” in at least three incidents investigated. On the other hand, it added that Hamas and other armed Palestinian groups committed war crimes by launching rockets at Israeli civilians and using civilians as human shields. That they also denied suspects the right to a fair trial – apparently in reference to the Hamas executions of suspects as accomplices during the 2014 days of hostilities.

The plaintiff is also interested in investigating incidents of IDF soldiers shooting at Palestinians who demonstrated or rioted near the border fence in the Gaza Strip, as part of the “Return March” demonstrations that began in March 2018. , Who have been involved in the activity of transferring an Israeli population to the West Bank since June 2014.

In its decision, the tribunal set the territorial boundaries within which the investigation into the commission of war crimes should be conducted – and in effect agreed with Bensuda’s own determination, which defined these borders as the 1967 “Palestine” borders that also include East Jerusalem and the Gaza Strip. The tribunal also ruled by a majority vote that Palestine is a member state of the tribunal, based on the claim of Israel and a number of countries around the world that Palestine is not a recognized state – and therefore the tribunal has no authority in the matter.

The judges’ decision in the decision given tonight is solely on the question of territorial jurisdiction, that is, whether the tribunal has jurisdiction to make a decision in the Judea and Samaria and Gaza area. The tribunal replied to the attorney general that he had jurisdiction – so the next step is the plaintiff’s decision whether to open an investigation or not.

The decision was made by three judges – Peter Covex, Marc Perrin and Reina Alpini-Genso – by a two-to-one majority. The Foreign Ministry and the Ministry of Justice say that the decision was made in the lower court of the tribunal, and there is a minority position of the head of the Cubax tribunal who opposes the most basic matter. In his view, there is no territorial jurisdiction in this case.

According to Israeli sources, the decision still leaves an opening on issues of jurisdiction in various contexts, and deals with the issue of territorial jurisdiction only: “There is still a long way to go before the plaintiff can take active action to promote investigative actions.”

Sources in Israel explain that for them, the decision is fundamentally wrong and relies mainly on political rather than legal arguments. “It actually deviates from the court’s mandate and is destructive for it, and also jeopardizes the rare opportunity created in the area on the basis of Avraham’s agreements and security coordination with the Palestinians. Instead of fighting between the parties, it polarizes between the parties and plays into the hands of extremists.”

According to them, seven member states at the invitation of the tribunal – including Germany, Austria, the Czech Republic and Australia – have submitted to him official positions in which they believe he has no authority to enter the matter on a legal basis.

Prime Minister Benjamin Netanyahu instructed the ministers not to comment publicly on the International Court of Justice’s decision. In an unusual post after Shabbat, he himself said that “today the tribunal has once again proved that it is a political body and not a judicial institution. The tribunal ignores real war crimes and instead pursues the State of Israel, a state with a strong democratic regime, which sanctifies the rule of law. In court.

“In this decision, the tribunal violated the right of democracies to protect themselves from terrorism, and played into the hands of those who are undermining efforts to expand the peace circle. We will continue to protect our citizens and soldiers from legal persecution in every way.”

Foreign Minister Gabi Ashkenazi said that “the decision of the International Criminal Court distorts international law and makes this institution a political tool in the hands of anti-Israel propaganda. The International Criminal Court has no authority to discuss the Palestinian case. The State of Israel is a strong democracy with an independent and effective judiciary. Deep appreciation around the world. “

He said, “The judges’ decision awards a prize to Palestinian terrorism and the Palestinian Authority’s refusal to return to direct negotiations with Israel, and contributes, in effect, to polarization between the parties. We call on states that see importance in the international legal system and oppose its political exploitation, to respect the sovereign right of states to choose not to agree to the jurisdiction of the tribunal. The State of Israel will take all necessary measures to protect its citizens. “

The US State Department commented on the decision, saying the US was “very concerned” about it. State Department spokesman Ned Price added: “We are announcing the decision and examining it.” The law.

The tribunal is expected to wait until the US administration changes for fear of sanctions from former President Donald Trump, who in June 2020 signed a presidential decree authorizing the imposition of economic sanctions on senior members of the International Criminal Court in The Hague who are involved in investigating and prosecuting U.S. troops. Their operations in Afghanistan or US allies including Israel. The order included the confiscation of the assets of those senior officials of the International Court of Justice in The Hague as well as the denial of their entry and entry of their family members into the United States.

The Israeli Foreign Ministry has not been notified in advance that a decision will be made on the question of authority on Friday evening, but it has been known for months that the decision may come at any moment. Israel, for its part, boycotted the entire proceeding so as not to give it legitimacy and did not respond to the court’s inquiries. Therefore, Israel can also not appeal the decision.

No. The main plaintiff in the foundation is expected to end her position this summer, and a procedure for selecting a new plaintiff is currently underway. The identity of this prosecutor will have an impact on the investigation against Israel, and theoretically he can even re-examine this investigation or stop it.

At this stage, no risk or threat is expected to Israeli citizens, but the process is long – and if an investigation is opened in the court in the future, this is a difficult and serious scenario for it.

The decision means that the way has been paved to open an investigation against the State of Israel for war crimes, and if that happens – Israeli elements, both among the military, at various levels, and those who promote the activities of the settlements, may find themselves facing criminal proceedings. Against them arrest warrants or stabilization orders. These senior officials can include the prime minister, ministers, the chief of staff and commanders-in-chief, but also heads of settlements and localities in settlements and senior officers.

Since it is likely that Israel will compete with the tribunal and not cooperate with it, there is a fear that the tribunal will issue arrest warrants against Israelis. Detention orders can be found secretly without the knowledge of the person in respect of whom the order was issued. Once an arrest warrant has been issued, every member state of the tribunal is obligated to obey it and transfer the detainee to the tribunal in The Hague.

If arrest warrants are issued against senior Israeli officials, their ability to travel to many countries will in fact be restricted. The decision will require Israel to make special preparations and extreme caution on flights of Israeli personalities and senior officers abroad for fear that they will be arrested.

There are 122 member states in the tribunal, including almost all countries in Western Europe and the Americas (except the United States), some African countries as well as Australia, Japan and other countries in Asia. There is no immunity before the tribunal for ministers and heads of state, including those still in office.

The State of Israel has already formulated a basket of tools that will make it possible to deal with the opening of such an investigation by the Hague Tribunal, including a protective umbrella for Israeli personalities and officers that the Tribunal will visit to investigate. However, it is important to emphasize that issuing arrest warrants is not something that will happen “tomorrow morning” – it is a procedure that can take months, or even more than a year.

“We are preparing to provide full protection to every Israeli citizen that the court will try – if an investigation is opened later – to pursue him legal persecution,” say officials in the Ministry of Justice and the Ministry of Foreign Affairs. “But it should be understood that at this stage no investigation has been opened and no summons has been sent to any Israeli citizen following this decision. Things can develop later.”

Senior Israeli officials said that the Hague issue was going to accompany us for a long time and “make a big headache”, but “the State of Israel is not helpless and we have something to do on this issue.”

One of the concerns mentioned in the hearings in Israel is from a “cooling effect” that will deter officers and senior officials from engaging in the settlement enterprise, which may be perceived by the International Criminal Court in The Hague as a war crime. This may, for example, make it more difficult to fill various positions in Judea and Samaria, which are responsible for construction in the settlements, house demolitions and land expropriations in the territories.

Alan Baker, director of the Institute for Public Diplomacy at the Jerusalem Center for Public and State Affairs, and former legal adviser to the Foreign Ministry (and a member of the Israeli delegation to draft the International Court of Justice) said in response to the International Court’s decision that it is both tragic and ironic that Israel “The establishment of the International Court of Justice as an independent body after the atrocities of the Holocaust has now become the goal of that tribunal on the basis of Palestinian political manipulation.”

According to Baker, the irony of the legal acrobatics perpetrated by the plaintiff is political and stems from a prejudice that elements of statehood and sovereignty should be attributed to the Palestinian Authority. “By any international standard – the Authority is not an entity of sovereign territory, and therefore, notwithstanding the laws of the International Court of Justice, it cannot be under the jurisdiction of the Court.”

He added: “The International Court of Justice, which is supposed to be an apolitical legal body, free from pressure and political influence, has allowed itself to become in this decision another anti-Israel body that is available to those seeking to challenge the legitimacy of the State of Israel. A revolution in the integrity and credibility of the International Court of Justice, but it also has the potential to undermine and frustrate the political process in the Middle East. “

Palestinian Prime Minister Muhammad Eshtiya welcomed the International Court of Justice’s decision, saying it was a “victory for the victims of Israeli crimes.” Eshtiya also called on the court to investigate as soon as possible the “crimes of Israel” in the last three systems in the Gaza Strip, the issue of prisoners and the issue of settlements.

Palestinian Foreign Minister Riyad al-Malaki welcomed the International Court of Justice’s decision to recognize the Palestinian Authority as a member state – and called on the Attorney General to open a criminal investigation against senior Israeli officials as soon as possible, for “their crimes against the Palestinian people.” Palestinian Authority official Hussein al-Sheikh said that “the decision of the International Court of Justice to include the Palestinian Authority as a member state in accordance with the Treaty of Rome constitutes a victory for truth, justice, liberty and moral values ​​worldwide.”

In 2015, the Palestinians joined the Rome Statute, which regulates the activities of the International Criminal Court in The Hague. The accession enabled them to initiate the move to advance an investigation against Israel. Netanyahu then decided to contain the Palestinian move, and settled as a punishment for stopping the transfer of funds to the PA.