By Justice Hub
So, the prosecutor of the International Criminal Court, Fatou Bensouda has already announced that she will conduct a preliminary examination into the situation in Palestine. Lots of commentators have reacted: some with high expectations. But what about the two main players? We’ve examined their public pronouncements and here is what Israel’s approach appears to be. Tomorrow we examine how the Palestinians have responded.
Israeli prime minister Benjamin Netanyahu has made his government’s position clear: the ICC’s decision is “absurd”
“It’s absurd for the ICC to ignore international law and agreements, under which the Palestinians don’t have a state and can only get one through direct negotiations with Israel.”
But, underneath this clear dismissal, there are in fact a variety of ways that Israel is approaching the situation.
For instance, last week, Israel’s government watchdog, state comptroller Joseph Haim Shapira, said he was opening an investigation into “decisions made by military and political leaders during last summer’s 50-day war.” He pointed out that no ICC investigation would be launched if a state itself had conducted “objective” investigations.
Former ICC prosecutor Louis Moreno Ocampo also suggested that Israel could put off any investigation by conducting full open investigations itself.
“Israel could achieve an even bigger impact while avoiding the intervention of the Court by inviting Palestine to create a “bilateral fact-finding committee” with experts representing all the parties to investigate alleged crimes committed by any party. This committee, which could also include international experts, could provide the evidence collected to Palestinian or Israeli Courts with jurisdiction over the case. “
This focus on a legal response to a threatened ICC investigation is also being seen as a opportunity to get any potential case thrown out before it would even come to court, according to this report in The Jerusalem Post.
“The best thing from Israel’s perspective, the officials said, would be for the court to decide that it cannot hear the case because of “jurisdictional issues.”’
On the other hand, the immediate diplomatic reaction from both Israel and its supporters has been questioning the very basis of the ICC starting an inquiry. Their arguments have focused on whether Palestine is in fact a state – despite a decision to that effect from the United Nations General Assembly – and therefore whether the ICC would have any basis for jurisdiction.
Alan Dershowitz at Just Security wrote:
“[the] practical problems simply illustrate the difficulties of recognizing a “state” that has no agreed upon boundaries and whose ultimate borders will be shifting in the future if peace is to be achieved. “
If that doesn’t work there’s another line of attack: According to this piece in Haaretz, Israel won’t hesitate to make use of mechanisms to call on the court to investigate the Palestinian side for war crimes.
“If the case moves forward, the [government] official warned, Israel has “many tools in our toolbox that we can use. The Palestinians are also vulnerable to legal attacks, both in the ICC and elsewhere.””
Meanwhile some parts of the Israeli government are attacking the court directly, focusing on convincing ‘foreign powers’ to cut ICC funding.
“”We will demand of our friends in Canada, in Australia and in Germany simply to stop funding it,”The Israeli minister of foreign affairs Avigdor Lieberman told Israel Radio, “This body represents no one. It is a political body.””
This approach relies on the assessment that the ICC is vulnerable to pressure. It needs the support of its members – the states parties – which include Germany and Canada. Any success in squeezing the court financially would affect its ability to face the new challenges and demands as outlined in the prosecutor’s latest strategic plan.
In the meantime, any move to defund the court has apparently been turned down flat by the ICC’s backers.
If Israel really considers the ICC decision an absurd one, why is it launching this fierce campaign against the Court?
Will Israel hold its own indepth investigations into the war last year in Gaza to prevent an ICC investigation?
How long will the ICC prosecutor take to hold a preliminary examination?