Chronicle of a Predetermined DecisionThursday 26/12/2019

The decision of the Chief Prosecutor of the International Criminal Court in The Hague to launch a “comprehensive criminal investigation” of “alleged war crimes” committed in what has been named the “situation in Palestine” is dramatic but not surprising. The writing was on the wall, written in large Gothic font. The decision was made somewhere in 2015, when the Chief Prosecutor, Ms. Fatou Bensouda, accepted Palestine’s request to join as a member state of the court.

The motives for Bensouda’s decision were probably political and as a result, answers from the political field are now needed. Let us not be mistaken, Israel has a long list of weighty legal arguments in her defense, but unfortunately, these will not rescue her from the current situation. Any attempt to fend off political interests with legal arguments, however strong, is doomed to fail.

At this time, it is essential for Israel to have political backing from the US and to encourage the positive winds blowing from England, as this is an hour for politics and diplomacy.

This kind of pressure was recently exerted with great success by the United States, where a series of resolute statements and decisions from the former National Security Adviser John Bolton and Secretary of State Mike Pompeo were able to thwart the ICC’s intention to investigate war crimes that US forces allegedly committed on Afghanistan’s soil. Incidentally, the ICC’s decision to reject the motion to investigate the alleged war crimes came immediately after the denial of entry into the United States of the Chief Prosecutor and an explicit threat to use the American Service-Members’ Protection Act, better known as the “The Hague Invasion Law,” which gives the president a free hand to take all necessary measures in order to release American soldiers, if the ICC decides to order their imprisonment. In addition, the law prohibits any cooperation or transfer of evidentiary materials to the ICC.

The broad American defense umbrella was kindly offered to Israel as well. The sand in Israel’s hourglass started draining on Friday and will last for several months. Within this time, the Chief Prosecutor, Ms. Fatou Bensouda, will receive the opinion of the pre-trial court regarding its legal position on the issue of the court’s jurisdiction to investigate the “situation in Palestine”. The court’s legal position does not oblige by law, but it can outline the limits and scope of the investigation, since these arise from a determination regarding the territory in which the court may exercise its authority.

The Jerusalem Institute of Justice, a legal research institute operating in the international legal arena, has recognized and anticipated the decision of the ICC and has worked hard to ensure that the ICC investigates the real criminals who are directly responsible for committing war crimes in our region, the Hamas terrorist organization. Our efforts have borne fruit. The ICC accepted the legal and evidentiary infrastructure we presented to it and stated that it intends to investigate, inter alia, the criminal use of the Palestinian civilian population as human shields, as well as victims of murder and torture.

It is important to clarify that the ICC in its decision to investigate Israel, clearly deviates from its given mandate. This mandate does not involve the criminal investigation of leaders from countries with a self-reliant, independent, and reliable judicial mechanism. Past experience shows that Israel and specifically the IDF are able to conduct self-examination and critique of their actions. Wherever Israel recognizes a potential deviation from the morality and values that characterize the IDF in its activity (in the myriad of complex challenges that it faces), it is still able to ask and answer tough questions when needed.

Adv Uri Morad,
Director of the of International Law & Public Diplomacy Department