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Political-political
The Hague judges have issued a yellow card, but the road to prosecution is still long
From the moment the prosecutor in the International Criminal Court Pato Bensuda decided that there was a reason to investigate Israel for alleged crimes against the Palestinians, Israel acted behind the scenes to challenge its authority.
Now that the legal mines like the recognition of the Palestinians have been removed, the internal investigation may prevent prosecution
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The Hague
International Court of Justice
United States
War crimes
Daniel Dolev
Friday, 05 February 2021, 21:46
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The decision of the International Criminal Court in The Hague last night (Friday), according to which the court has the authority to investigate crimes allegedly committed in the West Bank and Gaza, is a dramatic decision that surprised Israel at the time.
Along the way, it may lead to charges and even international arrest warrants against senior Israeli officials, but there is still a long way to go.
"Once the plaintiff in the court, Pato Bensuda, decided that there was a reason for an investigation, Israel did not cooperate directly with the procedure, and did not file a statement of claim," explains Prof. Yuval Shani, an expert in international law at the Hebrew University and vice president of the Israel Democracy Institute.
Despite this, he said, Israel "has carried out vigorous behind-the-scenes activity to encourage states and academics to submit pleadings or opinions to the tribunal."
It is not only in Israel that the move is troubled.
U.S. State Department spokesman Ned Price said today that his country opposes the decision.
"We are concerned about the possibility of the court initiating proceedings against Israel," he said.
According to Prof. Shani, the United States is in a situation similar to that of Israel, and the tribunal is examining its authority to discuss actions it has carried out in Afghanistan.
Both Israel and the United States claim that the tribunal has no jurisdiction to hear their case at all, because they are not members of the Treaty of Rome, from which the tribunal derives its jurisdiction.
"There were hopes that under the Trump administration, because of the similar situation of the Americans, the United States would pressure the tribunal to refrain from investigating non-member states. At the moment, that seems less likely."
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US objected. International Court of Justice in The Hague (Photo: AP)
The plaintiff in the foundation asked the tribunal to examine the question of the authority to investigate, after believing that there was alleged evidence that in the Israeli-Palestinian conflict, crimes had been committed that the tribunal was authorized to investigate.
The focus is on crimes allegedly committed by Israel and Hamas during Operation Eitan, as well as on Israel's settlement policy in the West Bank, which may constitute a crime defined as "forced transfer of population to occupied territory."
The question that has arisen is whether the Palestinian Authority is a recognized state, and whether the tribunal has the authority to discuss events that have taken place in its territory.
Yesterday, the judges ruled that the answer was yes.
If an investigation is opened, it is expected to lead to indictments, and even arrest warrants against senior Israeli officials.
The tribunal does not conduct proceedings against states, but against specific, almost always senior, individuals who are responsible for specific cases.
"As a rule, the court deals with people whose responsibility is the heaviest," says Prof. Shani.
"Usually they focus on leaders, or military officials whose responsibilities are particularly prominent. It is very unlikely that it will focus on soldiers, in fact it is almost impossible."
Sought to examine the question of the authority to investigate.
Prosecutor Basuda (Photo: Reuters)
One of the things that may prevent the filing of indictments against Israel is the "principle of complementarity" according to which the International Court of Justice operates.
The principle states that the tribunal will refrain from intervening in cases where the involved state itself is actively investigating the cases.
"The tribunal should check on each case whether an investigation has been conducted within the state," Shani says.
"The plaintiff stated that she had not yet formed an opinion on whether the military investigations in Israel met the supplementary requirement, but optimism could be drawn from the UK case. Regarding investigations into crimes allegedly committed by the UK in Iraq, the court set a low standard, and the plaintiff The complaints, even if in the end she did not prosecute anyone. "
"On the Palestinian side," Shani continues, "the plaintiff has already written in her request that there is no indication that there were investigations into things that happened in Gaza City. On the other hand, regarding Israel's settlement policy, there is no investigation here, so it looks like it could move forward." The Israeli. "
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