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Israel’s internal fight over its soul before the ICC – analysis

CM 08/04/2021

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After 20 years of fighting vaguer war crimes cases and around 11 years of fighting to keep the International Criminal Court out of its hair, the internal fight for Israel’s soul in how to address the alleged war crimes controversy has reached its climax.
Israel is supposed to respond to ICC Prosecutor Fatou Bensouda’s opening last month of a full war crimes probe by Friday – if it decides to respond at all.
While there are many more nuances, sources indicate that roughly speaking, the major camps within Israel are the isolate the ICC camp; cooperate with the ICC camp; reject formal cooperation with the ICC but quietly informally dialogue; and a mix of those strategies.
Indications are that the isolate camp is the strongest in the current state of things, but Israel has historically tried to explore multiple paths at the same time.
Below are seven challenges that sources indicate Israel’s leaders are wrestling with:

1. Outgoing prosecutor Bensouda versus incoming prosecutor Karim Khan

The decision to go after Israelis was made by lame-duck Bensouda, who leaves office in mid-June. There is hesitation about whether any major long-term decision should be taken now which cannot be revisited once Israel knows more about where Khan stands.
In fact, since ICC probes move slowly, there may be no rush, and the April 9 deadline may be mostly meaningless and could be reset once Khan takes office.
Some hope that they can even convince the court to just push off the deadline until Khan’s term.

How to address this issue is mostly tied up with whether one views Khan as better, worse or no change for Israel.
Some believe he is better because of his background defending alleged Kenyan war criminals and his criticism of Bensouda as taking on some cases that she should have passed on.
But others believe he would never have gotten the support of the human rights community and various states which supported him if he was not part of the general UN-system consensus (not to be confused with Israeli allies), which views Israel’s settlements as illegal and views some or many aspects of IDF conduct with the Palestinians as problematic.

2. The speed of Bensouda’s decision to open the full war crimes probe

Some of how to view Khan can be determined by how to view Bensouda’s lightning-fast decision to open the full war crimes probe. After a long, almost-five-year period of debating whether to go after the Israelis, Bensouda decided in December 2019 to make the move. However, due to the political sensitivities, she asked for the ICC Pre-Trial Chamber’s endorsement.
She got the endorsement she wanted, but not until this February, more than a year later. Given that she knew Khan would take over for her within months, many expected her to leave the final decision of whether to open the full war crimes probe against Israel to him.
The fact that she decided to go after Israelis only a month after getting the endorsement, forcing Khan’s hand, has led to a debate about whether he was onboard with the decision, and maybe even favored it so it could be laid at her feet – or whether Bensouda surprised Khan to try to push him in the direction she wanted.
Intelligence about Khan’s true views are limited and he has kept a very low profile since his appointment, making difficult a real analysis about what he will do.
In any case, waiting for Khan could be a way to buy time, which Israel has done well until now considering that the ICC has taken no action yet on a war that happened almost seven years ago.

3. The ICC Pre-Trial Chamber’s 2-1 split decision

One source of optimism that Israel can fend off the ICC war crimes probe, before it leads to arrest warrants or any other real-world consequences, is that the February decision endorsing the probe was lukewarm.
The decision was split 2-1 with a vehement and detailed dissent.
Some officials think this dissent is a road map for convincing Khan to drop the case or for an individual Israeli to later appeal to the ICC Appeals Chamber.

4. Burned dialogue

On the other hand, some officials who worked hard at an informal dialogue with the ICC dating back to the 2008-2009 Gaza war and the Goldstone Report – as well as with a spike since the 2015 preliminary probe of the 2014 Gaza war started – are frustrated by how completely Bensouda ruled for the Palestinians.
While the ICC Pre-Trial Chamber threw Israel some bones saying it was not deciding the political status of “Palestine” or the diplomatic status of the Oslo Accords, some pro-dialogue officials were very disheartened that the judges in the majority seemed to fully adopt the UN’s general favoring of the Palestinians’ positions on a variety of issues.
Unlike the UN Human Rights Council, Israel allowed the ICC Prosecutor’s staff to visit Israel in 2016 to advance understanding.
Having been burned from years of informal dialogue, some officials are concerned that this may be a dead end.
Still, Israel has shown it can be very effective using third parties – former Israeli officials, international jurists-supporters of Israel or allied states – to dialogue without formally legitimizing the ICC probe.

5. US sanctions removal undermines diplomatic options

But at the same time that the informal dialogue option looks somewhat less strong, the diplomatic-pressure option just got much weaker.
The Biden administration had maintained Trump-era sanctions on the ICC for nearly three months, but just recently removed them.
Washington still disagrees with the ICC on its probe of American forces in Afghanistan and its probe of Israelis.
But this move signals that it is not generally willing to go to the mat or risk harming the court as part of this disagreement.
Israel does have other allies in Europe and elsewhere who are big funders of the ICC, and who Jerusalem might hope would consider withdrawing funding to apply pressure.
Yet, it is far from certain that their general sympathy for Israel would lead to such diplomatic hardball.
It is far more likely that if the ICC were to seek to arrest specific Israelis, these countries would inform Israel in advance to avoid unnecessary friction and embarrassing situations.
But that does not stop the court’s charge ahead as much as it may mitigate some of the damage.

6. IDF versus settlements

Another approach is to divide between the IDF and the settlements as ICC issues. 
There is little optimism that informal dialogue will stop the ICC from going after the settlements. 
Israel views the settlements as legal or as part of a general diplomatic dispute with the Palestinians, so it has not probed them.
Since it has not probed them, it can therefore not demand the ICC to bar itself from involvement based on the complementarity principle that does not allow the court to intervene where a state has probed itself.
However, many Israeli legal officials think there is a strong chance that the ICC can be convinced to drop any cases against the IDF based on the more than 30 criminal probes and over 500 initial probes which the military’s legal division undertook regarding the 2014 war.
The same can be said regarding the 2018 Gaza border conflict, about which the IDF has probed, indicted and convicted various soldiers.
So there could be informal dialogue regarding the IDF, while trying to use diplomatic pressure regarding the settlements issue.

7. Settlements, peace negotiations and Israeli-Palestinian elections

Some Israeli officials oppose any new peace process with the Palestinians at a time when Washington is not even pressing the issue.
However, other officials say that Jerusalem’s last and best hope to block an ICC probe of the settlements is renewed negotiations.
The court is duty-bound to consider “the interests of justice” before it decides whether to indict anyone.

Source: Jerusalem Post

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