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<font size="1"><a href="https://www.palestinechronicle.com/israel-rejects-icc-investigation-what-are-the-possible-future-scenarios/">https://www.palestinechronicle.com/israel-rejects-icc-investigation-what-are-the-possible-future-scenarios/</a>
</font><h1 class="gmail-reader-title">Israel Rejects ICC Investigation: What Are the Possible Future Scenarios?</h1>
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<div class="gmail-reader-estimated-time" dir="ltr">April 13, 2021<br></div>
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<img src="https://www.palestinechronicle.com/wp-content/uploads/2021/03/ICC-2-678x455.png" alt="" title="ICC-2" style="margin-right: 25px;" width="482" height="323">
Palestinian organizations hold a press conference in Gaza. (Photo: Fawzi Mahmoud, The Palestine Chornicle)
<p><strong>By <a href="https://www.palestinechronicle.com/writers/ramzy-baroud" title="Display all articles for Ramzy Baroud">Ramzy Baroud</a></strong></p><p>The
Israeli government’s position regarding an impending investigation by
the International Criminal Court of alleged war crimes committed in
occupied Palestine has been finally declared by Israeli Prime Minister
Benjamin Netanyahu.</p>
<p>“It will be made clear that Israel is a country with rule of law that knows how to investigate itself,” Netanyahu <a href="https://www.reuters.com/article/us-israel-palestinians-icct-idUSKBN2BV1YY">said</a> in a statement on April 8. Subsequently, Israel “completely rejects” any accusations that it has committed war crimes.</p>
<p>But it won’t be so easy for Tel Aviv this time around. True, Israel
is not a party to the Rome Statute, according to which the ICC was
established, but it can still be held accountable because the State of
Palestine is a member of the ICC.</p>
<p>Palestine <a href="https://www.bbc.com/news/world-middle-east-32144186">joined</a>
the ICC in 2015, and the alleged war crimes, which are under
investigation, have taken place on Palestinian soil. This grants the ICC
direct jurisdiction, even if war crimes were committed by a non-ICC
party. Still, accountability for these war crimes is not guaranteed. So,
what are the possible future scenarios?</p>
<p>But first, some context …</p>
<p><strong>‘Blatant Impunity’</strong></p>
<p>On March 22, the Palestinian Ambassador to the United Nations, Riyad
Mansour, declared that “the time has come to stop Israel’s blatant
impunity”. His remarks were included in a letter <a href="https://www.reuters.com/article/israel-palestinians-warcrimes-icc-int-idUSKBN2BB2A9">sent</a> to the UN Secretary-General, Antonio Guterres, and other top officials at the international body.</p>
<p>There is modest – albeit cautious – optimism among Palestinians that
Israeli officials could potentially be held accountable for war crimes
and other human rights violations in Palestine. The reason behind this
optimism is a recent decision by ICC to pursue its investigation of
alleged war crimes committed in the occupied Palestinian territories.</p>
<p>Mansour’s letter was written with this context in mind. Other
Palestinian officials, such as Foreign Minister, Riyad al-Maliki, are
also pushing in this direction. He, too, wants to see an end to Israel’s
lack of accountability.</p>
<p>Till Netanyahu’s official position, the Israeli response has been most predictable. On March 20, Israeli authorities <a href="https://www.timesofisrael.com/israel-cancels-pa-foreign-ministers-travel-documents-after-visit-to-icc/">decided</a>
to revoke Al-Maliki’s special travel permit in order to prevent him
from pursuing Palestinian diplomacy that aims at ensuring the
continuation of the ICC investigation. Al-Maliki had, in fact, just
returned from a trip to The Hague, where the ICC is headquartered.</p>
<p>Furthermore, Israel is openly attempting to intimidate the
Palestinian Authority in Ramallah to discontinue its cooperation with
the ICC, as can be easily gleaned from the official Israeli discourse.
“The Palestinian leadership has to understand there are consequences for
their actions,” an Israeli official <a href="https://www.jpost.com/israel-news/israel-warns-there-will-be-consequences-for-palestinian-actions-at-icc-662804">told</a> The Jerusalem Post on March 21.</p>
<p>Despite years of legal haggling and intense pressure on the ICC’s
outgoing Chief Prosecutor, Fatou Bensouda, to scrap the investigation
altogether, the legal proceedings have carried on, unhindered. The
pressure was displayed in various forms: direct <a href="https://www.timesofisrael.com/israel-livid-over-scandalous-icc-war-crimes-probe-pa-and-hamas-cheer/">defamation</a> by Israel, as in accusing the ICC of anti-Semitism; unprecedented <a href="https://www.hrw.org/news/2020/12/14/us-sanctions-international-criminal-court">American sanctions</a> on ICC officials and <a href="https://www.timesofisrael.com/germany-hungary-back-israel-in-opposing-icc-ruling-on-war-crimes-probe/">constant meddling</a> and intervention, on Israel’s behalf, by member states that are part of the ICC, and who are described as amici curiae.</p>
<p>They did not succeed. On April 30, 2020, Bensouda <a href="https://www.icc-cpi.int/CourtRecords/CR2020_01746.PDF">consulted</a> with the Court’s Pre-trial Chamber regarding whether the ICC had jurisdiction over the matter. Ten months later, the Chamber <a href="https://www.icc-cpi.int/Pages/item.aspx?name=pr1566">answered</a> in the affirmative. Subsequently, the Prosecutor decided to formally open the investigation.</p>
<p>On March 9, a spokesman for the Court revealed that, in accordance
with Article 18 in the Rome Statute, notification letters were<a href="https://www.reuters.com/article/israel-palestinians-warcrimes-icc-int-idUSKBN2BB2A9"> sent</a>
by the Prosecutor’s office to ‘all parties concerned’, including the
Israeli Government and the Palestinian leadership, notifying them of the
war crimes probe and allowing them only one month to seek deferral of
the investigation.</p>
<p>Expectedly, Israel remains defiant. However, unlike its obstinacy in
response to previous international attempts at investigating war crimes
allegations in Palestine, the Israeli response, this time, appears
confused and uncertain. On the one hand, Israeli media revealed last
July that Netanyahu’s government <a href="https://www.timesofisrael.com/israel-said-to-compile-roster-of-officials-who-could-face-arrest-over-icc-probe/">has prepared</a>
a long list of likely Israeli suspects, whose conduct can potentially
be investigated by the ICC. Still, the official Israeli response can
only be described as dismissive of the matter as being superfluous,
insisting that Israel will not, in any way, cooperate with ICC
investigators.</p>
<p>Though the Israeli government continues to maintain its official
position that the ICC has no jurisdiction over Israel and occupied
Palestine, top Israeli officials and diplomats are moving quickly to
block what now seems to be an imminent probe. For example, Israeli
President, Reuven Rivlin, was on an official visit to Germany where he,
on March 18, <a href="https://www.eureporter.co/world/israel/2021/03/19/at-start-of-his-european-visit-israeli-president-rivlin-talks-with-his-german-counterpart-on-iran-icc-and-the-palestinian-issue/">met</a>
with his German counterpart Frank-Walter Steinmeier, thanking him on
behalf of Israel for opposing the ICC’s investigation of Israeli
officials.</p>
<p>After lashing out at the Palestinian leadership for attempting to
“legalize” the conflict, through an international investigation, Rivlin
renewed Israel’s “trust that our European friends will stand by us in
the important fight on the misuse of the International Criminal Court
against our soldiers and civilians.”</p>
<p>Unlike previous attempts at investigating Israeli war crimes, for
example, the Jenin massacre in the West Bank in 2002, and the various
investigations of several Israeli wars on Gaza starting in 2008-09, the
forthcoming ICC investigation is different. For one, the ICC
investigation targets individuals, not states, and can issue arrest
warrants, making it legally incumbent on all other ICC members to
enforce the Court’s decisions.</p>
<p>Now that all attempts at dissuading the Court from pursuing the
matter have failed, the question must be asked: What are the possible
future scenarios?</p>
<p><strong>The Next Step</strong></p>
<p>In the case that the investigation carries on as planned, the
Prosecutor’s next step would be to identify suspects and alleged
perpetrators of war crimes. Dr. Triestino Mariniello, member of the
legal team that represents the Gaza victims, told me that once these
suspects have been determined, “the Prosecutor will ask the Pre-trial
chamber to issue either arrest warrants or subpoena, at least in
relation to the crimes already included in the investigation so far.”</p>
<p>These alleged war crimes already include Israel’s illegal Jewish
settlements, the Israeli war on Gaza in 2014 and Israel’s targeting of
unarmed civilian protesters during Gaza’s Great March of Return,
starting in 2018.</p>
<p>Even more ideally, the Court could potentially widen the scope of the
investigation, which is a major demand for the representatives of the
Palestinian victims.</p>
<p>“We expect more crimes to be included: especially, apartheid as a
crime against humanity and crimes against Palestinian prisoners by
Israeli authorities, especially torture,” according to Dr. Mariniello.</p>
<p>In essence, this means that, even after the investigation is
officially underway, the Palestine legal team can continue its advocacy
to expand the scope of the investigation and to cover as much legal
ground as possible.</p>
<p><strong>‘Narrow Scope’ </strong></p>
<p>However, judging from previous historic experiences, ideal scenarios
in cases where Israel was investigated for war crimes rarely transpired.
A less than ideal scenario would be for the scope of the investigation
to remain narrow.</p>
<p>In a recent interview with former UN Special Rapporteur on the
situation of human rights in Occupied Palestinian Territories, Professor
Richard Falk, he told me that even if the narrow scope remains in
effect – thus reducing the chances of all victims seeing justice – the
investigation is still a “breakthrough”.</p>
<p>The reason why the investigation may not be broadened has less to do
with justice and much to do with politics. “The scope of the
investigation is something that is ill-defined, so it is a matter of
political discretion,” Professor Falk said.</p>
<p>In other words, “the Court takes a position that needs to be cautious
about delimiting its jurisdiction and, therefore, it tries to narrow
the scope of what it is prepared to investigate.”</p>
<p>Professor Falk does not agree with that view but, according to the
seasoned international law expert, “it does represent the fact that the
ICC, like the UN itself, is subject to immense geopolitical pressure.”</p>
<p>Still, “it’s a breakthrough even to consider the investigation, let
alone the indictment and the prosecution of either Israelis or Americans
that was put on the agenda of the ICC, which led to a pushback by these
governments.”</p>
<p><strong>Israel’s Missed Opportunity</strong></p>
<p>While the two above scenarios are suitable for Palestinians, they are
a non-starter as far as the Israeli government is concerned, as
indicated in Netanyahu’s recent statement in which he rejected the
investigation altogether. According to some pro-Israeli international
law experts, Netanyahu’s decision would represent a missed opportunity.</p>
<p>Writing in the Israeli newspaper, Haaretz, international law expert Nick Kaufman had <a href="https://www.haaretz.com/opinion/.premium-the-icc-prosecutor-was-my-superior-netanyahu-shouldn-t-speak-of-antisemitism-1.9605292">advises</a>
Israel to cooperate, only for the sake of obtaining a “deferral” from
the Court and to use the ensuing delay for political maneuvering.</p>
<p>“It would be unfortunate for Israel to miss the opportunity of
deferral which could provide the ideal excuse for reinitiating peace
talks with the Palestinians,” he wrote, warning that “if Israel
squanders such an opportunity it should come as no surprise if, at a
later date, the Court will hint that the government has no one but
itself to blame for the export of the judicial process to The Hague.”</p>
<p>There are other scenarios, such as even more intense pressures on the
Court as a result of ongoing discussions between Israel and its
benefactors, whether in Washington or among the amici curiae at the
Court itself.</p>
<p>At the same time, while Palestinians remain cautious about the future
of the investigation, hope is slowly rising that, this time around,
things may be different and that Israeli war criminals will eventually
be held accountable for their crimes. Time will tell.</p>
<p><em>(Romana Rubeo contributed to this article)</em></p>
<p><em>– Ramzy Baroud is a journalist and the Editor of The Palestine Chronicle. He is the author of five books. His latest is “</em><a href="https://www.amazon.com/These-Chains-Will-Broken-Palestinian/dp/1949762092"><em>These Chains Will Be Broken</em></a><em>:
Palestinian Stories of Struggle and Defiance in Israeli Prisons”
(Clarity Press). Dr. Baroud is a Non-resident Senior Research Fellow at
the Center for Islam and Global Affairs (CIGA) and also at the
Afro-Middle East Center (AMEC). His website is</em><a href="http://www.ramzybaroud.net/"><em> www.ramzybaroud.net</em></a></p>
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