Israel mobilizes to avoid accountability to the justice of The Hague

The next prosecutor general of the International Criminal Court (ICC), who will succeed Fatou Bensouda in June, will have in his hands the decision to accuse Israel for the first time of war crimes.

The Gambian jurist has spent more than five years investigating accusations in Gaza and the West Bank.

Having succeeded a week ago for The Hague to declare its jurisdiction over Palestine, Israel has mobilized to meet the challenge of accountability to international justice.

The complaints against the Government and the Israeli Army resulted last Friday in the declaration of competence of the TPI judges.

Bensouda, who will leave his post after nine years in office, took for granted in December 2019 the existence of “rational indications of the commission of war crimes [by both sides] in the context of hostilities in Gaza in 2014” and “ by the Israeli authorities in the West Bank for the transfer of Israeli civilians [to the settlements].

This is a controversial legacy for the new prosecutor.

The formal initiation of the case, if it finally occurs, may still take months.

Or years, if the UN Security Council intervenes.

But the Israeli government appears to have reacted swiftly to the first serious setback it has suffered in international criminal justice.

The Foreign Ministry has called for its diplomats to ask the governments of their destination countries to send "discreet messages" to the court in The Hague, according to information from the Israeli digital portal Walla.

The diplomacies of Germany and Hungary have been the first to question the jurisdiction of the ICC over Palestine, as it is not a recognized state.

For the veteran Palestinian leader Hanan Asrawi, the ICC's decision to assume jurisdiction over Palestine will force Israel to "account."

"The departure of Donald Trump from the White House has made this judicial resolution possible," admitted Asrawi, who was part of the Palestinian delegation at the 1991 Madrid Conference, quoted by Arab News.

"It is a clear sign that Israel does not have immunity and that the investigation for war crimes", maintains the former minister and deputy.

Professor of International Law at the Hebrew University of Jerusalem Yael Ronen points out that "it is not the States, but the people [military commanders and political officials] who can be prosecuted by the court."

Ronen recalls in a study published by the Forum for Regional Analysis that Israel is not a signatory to the Rome Statute, the treaty that created the permanent criminal court in 2002.

But Palestine ratified it in 2015 and granted it jurisdiction over its territory as of June 2014, before the last war with Israel in Gaza.

Palestine was already recognized as a “non-member observer state” by the UN General Assembly in 2012. Despite the fact that Israel has denied it state status, the ICC interprets that, “without entering to fix its borders”, Palestine is a state to the effects of the investigation.

These are the three areas of the investigation of the Hague Prosecutor's Office on Palestine:

–Gaza (2014).

Israel is accused of launching disproportionate attacks, the deliberate killing of civilians and attacks on Red Cross facilities.

The Palestinian militias are from deliberate attacks on Israeli civilians and from using Palestinian civilians as human shields.

–Gaza (2018-2019).

Israel is suspected of using "lethal means" against Palestinian civilians who demonstrated every week in front of the separation fence with Gaza.

-The West Bank.

Israel, the occupying power, is charged with a war crime for transferring part of its civilian population to occupied territory.

International arrest warrants

Israel is also preparing to instruct hundreds of military personnel to take precautions and avoid being detained abroad if judges in The Hague issue international arrest warrants, according to the

Haaretz newspaper

.

Israeli President Reuven Rivlin asked King Philip VI, during his visit to Jerusalem in early 2020, for help to stop the investigation.

The president expressed concern that The Hague could accuse the soldiers.

"They are our children and our grandchildren," he said, after recalling that the Israeli Army is forcibly recruited.

An alternative way out for Israel is for its own courts to take over the investigations before the ICC does.

The proceedings opened by the military justice on complaints of war crimes in Gaza, however, have hardly generated prosecutions.

The case of the death of four children playing on a beach in Gaza in the middle of the war in 2014 was shelved without charges in 2015. An investigation by the NGO Adalah, from the Arab minority in Israel, finally confirmed that the children perished from the impact of two missiles fired from an armed drone, according to data from the military police itself.

The army maintains that the children were mistaken for Hamas militiamen in a zone considered to be of war. An Israeli drone operator observed a human figure in a container attacked by aviation on suspicion of being a Hamas warehouse. A second device fired a missile at a child who had approached the container. The rest of the boys broke into a run while being pursued. The drone operator asked for clarification on the limits of the area of ​​the beach where it could open fire. When he received no response, he launched the missile half a minute later, which caused the death of the other three minors.