Should Israel Give The International Criminal Court Another Look?

               Many of us who care about Israel are frequently up in arms about the bias international organizations tend to have against it. Most notorious is the United Nations, where the numerous Arab countries routinely gang up against Israel in the General Assembly. It’s noteworthy, therefore, that last week the prosecutor of the International Criminal Court in the Hague released a string of decisions that are remarkably even-handed.

               The ICC’s Chief Prosecutor, Fatou Bensouda, has since 2015 been conducting a preliminary investigation into war crimes in Gaza and the West Bank at the request of the Palestinians. Last week her office released an update on this and her other eight current investigations.

Bensouda’s 2019 Report

               Bensouda states that Israel has used both lethal and non-lethal force against demonstrators, causing the deaths of 200 individuals, including 40 children, and wounding thousands others, including journalists and medical workers. But in the very next paragraph, she also acknowledges that some of the demonstrators engaged in violent acts in the immediate area of the border fence, such as throwing rocks, Molotov cocktails, and deploying incendiary kites and balloons that have resulted in significant damage to Israel.

               The report states that Israel may be committing the crimes of persecution, transfer and deportation of civilians, and apartheid in the West Bank. But then she also notes that Palestinian security and intelligence services in the West Bank have committed the crime against humanity of torture in detention centers under their control. Also, the Palestinian Authority has encouraged and provided financial incentives for the commission of violence against Israeli civilians by paying stipends to the families of Palestinians involved. The report says that this may be a crime which can be prosecuted at the ICC as well.

               This point was particularly upsetting to the Palestinians. Palestinian Foreign Affairs Minister Riad Malki said it was “based on misleading narratives of a political nature.” PA President Mahmoud Abbas vowed that the payments will go on.

               The ICC is set up to complement existing national justice systems. This means that it only prosecutes alleged crimes that no nation’s court system has handled. The report acknowledges that the Israel Defense Forces has a military justice system which investigates and punishes Israeli soldiers that commit crimes. The report notes that there is nothing parallel to this on the Palestinian side, meaning that the ICC may be more warranted in prosecuting crimes committed by Palestinians than by Israelis.

               Of course, this is just an interim report on a preliminary investigation, and we don’t know how thing will eventually go. But the report makes clear that the ICC is considering Israel’s positions and not just blindly trumpeting Palestinian claims and demands.

No Investigation into The Mavi Marmara

               ICC Chief Prosecutor Bensouda made another announcement last week. She reaffirmed that in spite of being formally requested to reconsider, she will not open an investigation into whether Israeli commandos may have committed war crimes when they boarded the Mavi Marmara to enforce Israel’s Gaza blockade in 2010.

               The Mavi Marmara set out from Turkey in an effort to bring supplies to Gaza in defiance of Israel’s blockade. Israeli commandos killed nine Turkish civilians when they boarded the ship in their naval raid.

               Bensouda did not determine that there were no war crimes. Instead, her reason for not investigating is that the alleged crimes are not sufficiently grave.

               Gravity is a subjective criteria the ICC must consider. It’s similar to the discretion a prosecutor employs in the regular legal system. There are not enough courts or resources to prosecute every crime. So a district attorney must decide what cases to dismiss with a warning, when to strike a quick plea bargain, and when it’s really worth it to take a case all the way to trial.

               The limitations of the ICC are even more stark. With just 3 courtrooms, it is hardly feasible to prosecute all the war crimes, aggression, genocide, and crimes against humanity committed on earth. So the ICC focuses only on the most flagrant and consequential violations and sets the rest aside.

               Bensouda stated that whether or not the raid on the Mavi Marmara was justified, and whether or not in carrying out the raid the Israeli commandos sufficiently safeguarded civilians, this was an isolated incident nine years in the past. Any Israelis who might be prosecuted for what happened on the Mavi Marmara are likely fairly low level officers who may no longer even be in the military. The ICC must prioritize large scale, ongoing crimes committed by powerful military or civilian leaders, and this is just not worth the ICC’s time.

The Opposite Of What We’re Used To

               It’s important we recognize this is exactly the opposite of the bias of which we usually accuse international organizations. It often seems like the world is all too ready to pounce on even the smallest human rights violation committed by Israel, while overlooking far more widespread and serious atrocities committed everywhere else. Bensouda just did exactly the opposite. In this case, to the great frustration of Turkey and the Palestinians, she is going to let allegations against Israel go in order to train her sites on other, more serious matters in other places.

               Israel has long refused to sign the Rome Statute and join the ICC because of a fear the ICC will just become another tool for its enemies to use against it. But we see this isn’t necessarily the case. Unlike at the U.N., where votes are purely politically, at the ICC Israel has the opportunity to advance legal arguments which have to be reckoned with. Maybe it’s time for Israel to reconsider joining.


The International Criminal Court’s 2019 Report

Palestinian Reaction To Accusation That Payments To Terrorist Families May Be A War Crime from Al Jazeera

Coverage of Refusal To Investigate the Mavi Marmara from Al Jazeera

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