ICC Opens Investigation Of Potential Israeli War Crimes

In March, the International Criminal Court (ICC) chief prosecutor opened a formal investigation into alleged war crimes in the occupied Palestinian territories. Fatov Masouda said the probe would cover events in the Israeli-occupied West Bank, East Jerusalem and Gaza Strip since June 13, 2014. The Hague-based court ruled that it could exercise its criminal jurisdiction over the territories. Israel rejected Bensouda’s decision while Palestinians praised it. Israeli Prime minister Netanyahu said it was “anti-Semitic.” The ICC has authority to prosecute those accused of genocide, crimes against humanity, and war crimes on the territory of states party to the Rome Statute, its founding treaty. Israel has never ratified the Rome Statute, but the Secretary General of the U.N. accepted the accession of the Palestinians in 2015.

Many Israeli and Jewish human rights advocates welcome the ICC investigation. Writing in Mondoweiss (March 4, 2021), Larry Derfner, for many years a columnist for the Jerusalem Post and now a contributor to Haaretz, notes that, “There’s a natural resistance to saying that your country deserves to be investigated for war crimes by the ICC in The Hague. But if you believe that Israel’s open-ended occupation and the settlements and lethal onslaughts in Gaza that go with it are morally untenable, how do you avoid that conclusion?”

Derfner, the author of “No Country For Jewish Liberals,” declares that, “The arguments against an investigation don’t stand up. I suspect Netanyahu knows that the real reason the ICC doesn’t investigate Iran or Syria... or a number of other regimes whose criminality exceeds... Israel’s... is because the wrongs these regimes commit don’t effect a state that has granted the ICC jurisdiction over it by signing the Rome Statute. Neither Iran nor Syria or the other countries are terrorizing states that have signed the Rome Statute, so unfortunately North Korea, Zimbabwe, etc. are free to plague their citizens as much as they want to and they will fall outside the ICC’s purview. Israel hasn’t signed the Rome Statute either but the difference is that Palestine has. Palestine—-recognized by the U.N. General Assembly as the West Bank, East Jerusalem and Gaza—-is where Israel’s persecution has been taking place. It was the government of Palestine, the Palestinian Authority, that asked the ICC to investigate Israel for war crimes.”

Larry Derfner concludes: “Is it fair that the ICC is investigating Israel for war crimes? In the narrow legal sense, yes. In the larger moral sense, it’s more than fair.”

The new ICC role, says Michael Sfard, the Israeli human rights attorney, means that it cannot “evade” an investigation and possible prosecution of Israeli officials over the illegal settlements policy on the West Bank. Speaking to Ori Nir on an Americans for Peace Now webinar in February, Sfard said that the ICC can now begin an investigation in earnest: > “ And Israel is in a box. It will say that it has legal mechanisms to investigate war crimes stemming from its assaults on Gaza and other atrocities but it has no such fig leaf for the settlements... On the issue of settlements, Israel does not claim to investigate and prosecute. For Israel, settlements are not illegal, and so it’s an official policy... .If the ICC were to drop a case against Israel, that would cause a domino effect of developing world countries leaving the court. So it’s an existential problem for the ICC.” **