Last week a three judge panel of the International Criminal Court ruled that the ICC has jurisdiction over the West Bank and Gaza. This has sent the Israeli government into a fury, with Prime Minister Bibi Netanyahu vowing to ‘fight this injustice with all our might,’ and organizing an international campaign to pressure the ICC not to move forward. Coverage from the Associated Press is here.
From Bibi’s reaction one might think that plane service between Ben Gurion airport and the Netherlands will soon be increased to carry the heavy bundles of ICC indictments that will be coming in the mail. In truth, this is far from the case. The impact of any ICC investigations of Israel is likely to be limited, if there are even any indictments at all.
The first area the ICC may look at is Gaza, with a particular focus on Israel’s battle there with Hamas in the summer of 2014. The Palestinians point to thousands of civilian dead, along with vast civilian infrastructure such as schools and housing destroyed, as evidence of Israeli war crimes.
And to be clear, we cannot brush aside the horrific toll the war took on Gaza civilians. Such widespread civilian harm certainly does give the impression that Israel either targeted civilians deliberately or attacked military targets in ways that caused disproportionate civilian harm. But Israel has several important defenses that will have to be considered carefully as well.
Israel will claim that many of the ostensibly civilian buildings it destroyed were actually being used by Hamas for military purposes. Israel has evidence of Hamas firing missiles from the roofs of civilian buildings, hiding weapons in homes and schools, and the like. In addition, Israel claims that many dead Palestinian civilians were purposefully put in harms way by Hamas to act as human shields.
Beyond that, in many instances even the basics of what happened are disputed. What Hamas says was an Israeli airstrike that killed civilians Israel may claim is Hamas ammunition exploding by accident. What Hamas says are dead civilians Israel often says are really Hamas fighters disguising themselves in civilian garb. The arguments and accusations go on and on.
The point is that any investigation into Israeli war crimes in Gaza in 2014 will have to be painstakingly fact intensive. Broadly speaking, in order to issue an indictment the ICC will have to gather sufficient evidence to prove that an Israeli commander knowingly ordered an attack on what he believed to be civilians, and claims that Israeli intelligence thought weapons or Hamas fighters were at the target site are pure fabrications which Israeli commanders even at the time knew to be untrue.
To be clear once more, this is not to say that the Israeli military necessarily committed no crimes. It very well may have, and if it did the individuals involved should be held accountable. The point is that proving crimes by Israel will be an extremely tall order. This will be even more so now that these events are so far in the past.
It should also be noted that this is hardly the case on the other side. It is against the Geneva Conventions to use a weapon that cannot be guided sufficiently to discriminate between military and civilian targets. The Katyusha rockets Hamas launched by the thousands were aimed at Israeli population centers and are not accurate enough to hit targets smaller than a city. There is no need to examine where each katyusha rocket landed or what it hit. Launching those rockets was a war crime, plain and simple.
All the ICC needs to determine is who ordered the use of Katyusha rockets and who launched them. Those individuals can be indicted without investigating any more.
A second issue of concern is the matter of settlements in the West Bank. As is well known, much of the international community regards the West Bank as Palestinian territory under Israeli occupation since 1967. The Geneva Conventions prohibit an occupying power from transferring its civilian population into areas it occupies militarily. Therefore the ICC may accuse Israel of committing this crime of population transfer.
Israel, of course, does not see things that way. Israel believes it has valid claims to the West Bank based on both ancient history and more recent events leading up to its independence in 1948. Therefore, in Israel’s view allowing its civilian population to settle there should not be a crime. Israel will likely assert that even though the United Nations and most other countries disagree with it, the matter is still fundamentally a political dispute which a judicial panel at the ICC has no right to decide.
It’s certainly possible that the ICC may in fact go against Israel and take the view that determining whether Israel has the status of a foreign occupying power in the West Bank is in fact a legal issue for them to decide. And if they do, there is no doubt they will adopt the majority view of the international community that transferring Israel’s civilian population to the occupied territories is a war crime. At that point there will be no more disputed facts to wade into. The settlements are located in the occupied West Bank, and they are populated by Israeli civilians. So the next step could be indictments.
But not so fast. There are two major issues the ICC would still have to overcome.
Who Is Responsible?
The ICC only has jurisdiction over individual people. It cannot indict a government, political party, or organization- only humans. So should the ICC determine that building settlements is a war crime, it would then be confronted with the dilemma of whom to indict.
There could be many candidates. Prime Minister Netanyahu, who has supported building settlements throughout his lengthy time in office? But why just him? What about Prime Ministers who preceded him, since the settlement movement goes back much farther? And why just the Prime Minister? What about all the other cabinet members or Knesset members that have voted in favor of settlements throughout the years? Netanyahu has often not been the most pro-settlement member of the government, and has many times agreed to allow expanding settlements just to maintain his coalition or get support from right wing parties for other matters. And how about ministers of housing, finance, and infrastructure, all of whom have all played major rolls in settlement construction?
And for that matter, why just the government? Many right wing political figures have advanced the settlements agenda by using threats and promises to pull government policy in their direction. And what about the settlements’ regional councils and their local governments? What about construction company executives that promoted settlements to profit from the building booms? How about some of the more ideologically motivated settlers themselves?
The point is, the settlements are the product of a wide ranging political movement consisting of many different interests that have come together for different reasons over the course of many decades. Any individual the ICC might pick out to prosecute could fairly claim to be merely a scapegoat, and there are only a handful of defendant holding cells in the Hague. It’s not clear that a broad-based political movement that’s lasted decades is something the ICC has any means of prosecuting.
A second issue the ICC will have to address is the gravity of the crime. The ICC has only three courtrooms, so it recognizes that it cannot possibly attempt to prosecute every war crime committed anywhere in the world. Therefore gravity of the offense is one of the factors that the ICC prosecutor is explicitly required to consider when deciding whether or not to pursue an investigation or eventual prosecution. Is the crime large enough in scope and has it caused severe enough harm to merit the attention of the ICC?
So far all prosecution at the ICC has been for allegations of genocide, mass murder, torture, and the like. How would building illegal housing fit in?
Not only did the settlements not kill anyone, but Israel will point out that should it be necessary they can even be removed. This is in fact what was done with Yamit when Israel made peace with Egypt, and with Gush Katif when Israel withdrew from Gaza. How can putting up clusters of houses that can someday be taken down be considered on the level of the crimes that shock the conscience of humanity which the ICC was created to prosecute and hopefully deter?
The gravity of a crime is of course subjective, and the ICC prosecutor can argue that in her view the settlements have caused sufficiently serious hardships and suffering for the Palestinians that they have to be addressed. But it will be very hard for the ICC to maintain that it is evenhandedly surveying the world and choosing the worst of the worst to prosecute if it puts a housing minister on its dock. Israel will scream how come the ICC lets dictators that have sprayed chemical weapons on their own citizens go unpunished but it still has holding cells free for defendants whose alleged crime is building homes? Even nations that don’t accept Israel’s legal position regarding the West Bank are likely to be sympathetic to this.
The point here once again is not to assert that Israel is innocent of all alleged war crimes. Only that the ICC is hardly the threat that Netanyahu makes it out to be, and the ICC may in fact be more likely to have success prosecuting members of Hamas than prosecuting Israelis. As a clear victim of war crimes itself, the ICC could in fact even be Israel’s friend. It’s a shame the current Israeli government doesn’t see it that way.