Green light for ICC war-crimes probe into Israel ‘not antisemitic’

Confirmation by judges of the International Criminal Court (ICC’s) of the court’s jurisdiction over the situation in Israel and Palestine cannot be considered antisemitic, according to legal scholar and author Phillipe Sands.

On Sunday, 28 February, Sands addressed the heated debate over the possibility of the Jewish state facing war-crime suits for actions carried out by the Israeli Defense Forces (IDF).

He explained that while the green light had been given for an investigation to ahead, it wasn’t yet guaranteed that an indictment of either side would be forthcoming.

Early last month, the ICC’s Pre-Trial Chamber ruled 2-1 that the court’s chief prosecutor, Fatou Bensouda, had the jurisdiction to launch an investigation into potential Israeli and Palestinian war crimes on territory over the pre-1967 lines in the West Bank, Gaza, and East Jerusalem. Although the investigation has yet to be undertaken, tempers are flaring, with Israel supporters calling the move politically motivated and antisemitic.

It spurred social-justice organisation Jewish Democratic Initiative and Yachad United Kingdom to co-host Sunday’s event, outlining exactly what the ICC’s decision means.

“The ICC was established in 1998 as the culmination of 50 years of negotiation,” said Sands. “It followed the trials at Nuremburg and Tokyo held after World War II.

“It was established to have jurisdiction over war crimes, crimes against humanity, genocide, and aggression, the last only recently agreed on,” he said. “It operates on the principle of complementarity, used only if national courts didn’t investigate. Its jurisdiction is limited in terms of territory and nationality to states that are party to its statute.”

Israel hasn’t ratified the statute, meaning that it doesn’t attach to Israeli territory. Palestine, however, ratified it in 2015.

Cases can be brought only against living individuals, said Sands, not against governments, states, or corporations.

“To date, the ICC has indicted 30 individuals and addressed 30 cases,” he said. “Every individual has been black and African. On this basis, it has been said that the court is anti-black, and while this isn’t the case, it’s a problem that only one continent has really been brought into the ICC’s scope.”

According to Sands, there are currently nine preliminary inquiries into violations by countries including Colombia, Nigeria, Ukraine, Venezuela, and Bolivia. Thirteen investigations are taking place following preliminary stages in Sudan, Libya, Afghanistan, Bangladesh, and others.

Regarding Israel, the issues on which the ICC must decide at this stage relate to preliminary examination only, Sands said. “After Palestine became a party to the statute in 2015, it referred to the prosecutor the matters taking place in its territory for which it held Israel responsible, primarily in Gaza.”

Bensouda began a preliminary examination to see if anything could be done. In December 2019, the prosecutor concluded that there was reasonable basis to proceed with an investigation.

“She did so in relation to a single question: the scope of territorial jurisdiction of the ICC,” said Sands. “This precondition of exercise of jurisdiction is that the crime occurred in a territory subject to the treaty. She sought conformation that the territory in question comprised the West Bank, East Jerusalem, and Gaza.”

“At this stage, Bensouda is of the belief that there are reasonable grounds to say that war crimes were committed in 2014 in Gaza. This includes the actions of both the IDF and Hamas.”

Regarding the IDF, crimes include intentionally launching disproportionate attacks, wilful killing and causing serious injury, and intentionally directing attacks against objects or persons using emblems of the Geneva Convention. When Hamas and “Palestinian armed groups” are concerned, the crimes include intentional targeting of civilians, using people as shields, wilfully depriving people of their right to trial, and torture or inhuman treatment.

Sands said that within the context of the West Bank, Bensouda also felt there was reason to believe Israel had committed war crimes by transferring Israeli citizens into the West Bank since 2014 and in attacks by the IDF against protestors on the border in 2018.

The request was sent to the ICC and brought before a panel of three judges to decide in the pre-trial chamber. They issued their decision on 6 February.

“It was limited to the question of whether Palestine is a state under article 12 of the ICC statute. The court concluded by majority that Palestine was a state within the meaning of the article, but made clear it had no view on whether it’s a state for other purposes under general international law.”

The court also concluded that the scope of jurisdiction applied through the entirety of the territory, including those areas occupied by Israel since 1967, namely Gaza, the West Bank, and East Jerusalem.

Said Sands, “It was decided 2-1 that the prosecutor may proceed to investigate any acts before her that occurred in the territory of Palestine. That’s the extent of the decision that has been taken.”

Branding this move antisemitic or anti-Israel is an unfortunate charge to make, Sands said.

“A court isn’t antisemitic or anti-African but is made up of the individuals who are part of it. The court had a job to do, and I’m quite certain that the three judges went about their decision without any prejudice on either side in relation to the crimes which may or may not have been committed.

“All that has been decided is the scope of possible future investigation. It doesn’t mean there will be any indictments, but an investigation. After an investigation, it will need to go before another panel of judges to get any authority to issue an indictment, and only then will the issue proceed.”

Even then, the ICC won’t have the power to arrest anyone – it depends on the co-operation of the state or entity concerned.