[See also: Abbas confidant: We’ll take ‘hundreds’ of IDF soldiers to ICC this year]
Israel lost a significant battle on Friday. But the war over the ICC is still in play.
How does the UN Security Council resolution declaring Israel’s settlements and buildings in the West Bank and east Jerusalem as illegal impact International Criminal Court Prosecutor Fatou Bensouda’s decision about whether to dive deeper into the Israeli-Palestinian conflict?
First, the context. Bensouda opened a preliminary examination into alleged war crimes relating to the 2014 Gaza war and to the settlement enterprise in January 2015.
The million-dollar question has been whether she would move from a preliminary review to a full criminal investigation.
The concerns were not only potential actual war crimes trials.
They were also about the lasting diplomatic and public relations damage such an investigation would do to Israel. The problems could be both big-picture and specific to Israeli officials who might suddenly be unable to travel to 120 countries who are members of the ICC (including Europe) without risking arrest.
Further, there was a concern that such an investigation, if it was into the 2014 Gaza war, could negatively impact Israelis volunteering for combat units, or combat units fearing to defend themselves lest they might find themselves in the dock at The Hague.
It is clear that UNSC Resolution 2334 was a disaster diplomatically, as well as from a public relations angle, and that Israel is living in a new more hostile world than it was prior to Friday.
In fact, one might say that one of the worst case scenarios of impacts from an ICC full criminal investigation has already happened because of the resolution, ironically making the ICC issue less high stakes.
Simply put, diplomatically, such a UNSC resolution might be worse than any ICC criminal case.
But even in the worst case scenario and this new hostile world, the damage legally is also far more contained than people may realize.
While the non-judicial UNSC calls the entire settlement enterprise of hundreds of thousands of people illegal, Bensouda’s examination from the start has been limited to events which occurred after November 29, 2012 – when the UNGA declared “Palestine” a state.
In place of hundreds of thousands of settlers’ residences being in play, the numbers suddenly drop to thousands or somewhere in the 10,000 range.
Also, individual settlers would not be on the hook before the ICC. At worst, the defendants would include key ministers involved in settlement approvals, such as the defense and housing ministers, and possibly also local settlement officials.
It is also possible that aspects of the legal proceedings could be avoided, mitigated or defended if specific residences built after November 29, 2012 were removed or if they became legalized in a future peace agreement.
Moreover, the decision may be far away. In multiple exclusive interviews with The Jerusalem Post in February and October, both Bensouda and her office’s head of jurisdictional issues, Phakiso Mochochoko, signaled that they were far from decided about the war crimes issue and also would likely take years to decide.
After setting the stage, how much did the UNSC resolution move the dial toward a full criminal investigation?
The Jerusalem Post spoke and was in contact with the Foreign Ministry, former IDF international law division head Col. (res.) Pnina-Sharvit Baruch, former IDF international law division head Col. (res.) Liron Libman, former foreign ministry top legal adviser Robbie Sabel, former Hebrew University Law School Dean and Israel Democracy Institute Senior Researcher Yuval Shany and others.
The Foreign Ministry is not giving much at this time, saying it is studying the issue, and might be unlikely to give its opinion even if it had one, lest its opinion damage Israel’s tactical options.
Beyond that, there is no consensus with the dust just starting to settle from this diplomatic earthquake. But the overall trend appears to be that the UNSC resolution at most will give Bensouda a political headwind if she was already going to go after the Israeli settlements, but changed very little in a strict legal sense.
Libman pointed out that all of the worst language against the settlements in the UNSC resolution is basically word-for-word from three UNSC resolutions from 1979-1980. Saying the settlements have “no legal validity” are “flagrant violations” and are against both international law and “international humanitarian law” are not new.
In that sense, if Bensouda wanted to go after the Israeli settlements as war crimes, she had a case based on prior UNSC resolutions as well as the 2004 International Court of Justice opinion declaring the settlements illegal.
Critically, the UNSC resolution was not passed in the context of Chapter 7 of the UN Charter, which is the most binding under international law and is the main mechanism for wide-based international sanctions. This means it was weaker than it could have been.
In that sense, legally, there is “nothing new under the sun” here.
However, until now, the UNSC resolutions condemning the settlements as illegal were around 35 years old. They had not been repealed, but the Oslo Agreements had intervened, Camp David II had set out a vision of Israel keeping settlement blocs and all attempts to repeat such unequivocal settlement language had been vetoed by the US.
Now those arguing that the settlement enterprise should be prosecuted as war crimes can connect the dots between the 1979-1980 resolutions, the 2004 ICJ decision and the 2016 resolution.
More critically, the 2016 resolution comes out in the middle of an ICC examination. If Bensouda wants to point to what the most current trend of thinking is regarding the settlements of international law, the resolution could be a body blow for Israel.
But all of this misses maybe the most important potential defense for Israel, among many possible defenses.
Flying through another country’s air space for a few seconds is a violation of international law. But it is a low grade violation. It is not a war crime. None of the UNSC resolutions nor the ICJ decision say that the settlements are a “grave” (the use of “flagrant” violation as opposed to “grave” is likely not a coincidence) violation of international law, let alone label them a war crime.
Still, that does not end the debate, as the ICC’s Rome Statute does include language that both direct and indirect actions of population transfer are war crimes. The late addition of “indirect” was perceived as focused on Israel’s settlements and was the reason Israel never ratified the ICC’s Rome Statute, despite being deeply involved in trying to establish the ICC.
At the end of the day, the question is whether Bensouda will decide to be the first one in history to prosecute people for building houses and laying water pipes, as opposed to being focused on genocide, mass killings and mass rape – which many conceive of as the ICC’s true purpose.
No one can know for sure, but Shany said he believes Bensouda will order a full criminal investigation. He noted that the settlement enterprise “is not just one porch sitting in Gilo” and that, along with the UNSC resolution, its immensity will be too big to ignore from its perspective.
Sharvit-Baruch has different views than Shany and believes no decision is close to imminent, but overall also believes that Bensouda will move to a full criminal investigation.
Sabel said he believes Bensouda will not order a full criminal investigation. He noted that it would be difficult for her to explain what she was investigating, since even after the UNSC declared the settlements illegal, and she recognized Palestine, “Palestine” has no borders.
This exposes that the whole issue is a political one of setting the borders between the Israelis and the Palestinians, Sable says.
Libman says it is too close to call and that most of the evidence which shows how Bensouda will act could cut either way.
A case in point is a few African countries withdrawing from the ICC because they accuse it of being too focused solely on Africa. Will their withdrawal encourage Bensouda to take risks, such as with the Israelis and Palestinians to address the criticism, or will it discourage her, as their withdrawal may make her more risk averse.
Israel lost a significant battle on Friday. But the war over the ICC is still in play.
First publish in the Israeli press Hebrew, English and Arabic the list of war crimes in the Rome Statute of the ICC (probably Section 8.2)which includes “human shields” and hostages. Then comb the press for the words when the Arabs gloried in embarrassing the IAF out of bombing Hamas by using their OWN(!!!)population as human shields.
If the PA tries to take Israelis to ICC then take PA/Hamas honchos for trial in Israel for human shields, and the Nuremburg charge of waging aggressive war.
?@bernard ross: many thanks for comment #6. This looks like a way out of the mess that may even be able to circumvent the caprioles of the supreme court. Our only problem is to get BB to actually take this step.
I cannot imagine that he has not considered it so far. Being generous, maybe he was simply waiting for the correct point in time.
If Israel enacted a set of laws on anti semitism and like other nations gave itself the right to capture, trial and incarcerate the perps…. if it could declare that blood libels stating that jews living in the jewish homeland are illegal and illegitimate, is a covered crime… like the ICC, who gives itself power over non signatories, Israel could bring those judges and other members of foreign nations to trial in Israel like eichmann. Anyone who has the power can vote anything to itself… which is another reason for not dealing with the BS institutions who stalk the jews… better to destroy them by any means.
In my view, the current presence of all the PLO, their families and descendants of those originally let back in from Tunisia is illegal and illegitimate. This is simply one more example of Netanyahu incompetency in not planning for the most likely future scenarios. Just like BB never had a plan for the Iran debacle after years of whining, just like he appears to have no pre made plan for the most recent likely scenario of a non veto from the US it appears that BB has no plan for the complete breakdown of Oslo and the road map. In my view both of these are already breached in their major principles regarding settlement and unilateral action. All the road map players are now in breach of the road map with the recent UNSC vote AND Oslo breached on unilateral pal action and the fraud of settlement issue. In such a case that now exists where we have an informal continuance of Oslo and the road map it is inevitable that they will have to both be completely abandoned… so whats his plan for this most likely scenario???
One situation I would suggest which can begin now is that just as BB has ordered his symbolic assessment of the UN he should order up an assessment of what the implications of Oslos end is and the impact on the PLO. PLO, and tens or hundreds of thousands of their families, were allowed into Israel PURELY on the basis of the Oslo agreement. I contend that the end of that agreement renders their presence obsolete and illegal. The end of Oslo should bring a removal of them, their families and descendants as there is no reason for them to remain with oslo dead. He should order an assessment now of the scenario of the logistics of removing them…. the PA gov, the PLO org, their families and all descendants of the original entrants. The PA should be dissolved with an immediate return to the status quo ante until Israel can devise a replacement approach whether an autonomy, hamlets, a state annexation, etc. The main thing is the removal of the failure gov and peoples who arrived on a misrepresentation.
When Abbas and the rest talk of bringing Israeli soldiers to a third party for judgement he should be reminded that he and his crooked sons, and all the PA and PLO families, are here iillegally, and illegitimately, because they breached their entry agreements. The threat will be real if BB immediately announces a complete assessment of the implications of failed oslo and road map… which the UN, the pals, the road map participants have now destroyed. BB should order this assessment transparently for Israelis to consider…. there is no reason for Israelis to put up with the PLO frauds in their land who entered as a fraud. BB must act to identify all options for the end of Oslo and the road map…or he is incompetent to lead.
First the assessment, so the world can see where this can go and can see that it is not only Jews that will suffer. Israel must be seen to be serious and not just a whiny talky BB bs artist, with fake red lines and charts, that no one ever takes seriously. Put fear into the hearts and the pockets of every PLO and PA member that they can easily be deported and all their assets confiscated, perhaps abbas will then quiet down… or better, be kicked out with the rest.
This could act as the beginning of a new paradigm entering into the Israeli psyche. The only paradigm now in existence is giving the jewish homeland to the arabs… and so far BB has done everything to maintain this as the only available paradigm, even now there is no talk of jewish rights in YS to live there.
The odds are stacked against us. Even if the ICC was to review the context of the claims regarding legality of the “settlements”, it current does not have the mandate to do so. The only claims that would be examined are those that claim that Israel has been stealing Palestinian land. The fact that Palestinians have been building their villas illegally is of no importance and will not even be put on the scales of “justice”. All the legal mumbo-jumbo about the land being Israeli since the mandate and that Jordan gave the illegally occupied land to Israel (not Palestine) is insignificant if the only claims being judged upon are those of theft of land from the Palestinians.
Just by the way, why do the Jordanians think they have a right to counter their own actions of the past in returning Judea and Samaria to their rightful owners? They also deserve a punch in the nose for that, even if we consider that they are a buffer zone between us and ISIS. That buffer will not be worth the thought if the ISIS war continues along its present trajectory.
@ SHmuel HaLevi 2:
Agree. All what you have to do is look at who supports these organizations. Very simple. Defund the UN, the ICC and all other organizations whose only purpose is to assault all the western values and specially to harass Israel.
All are funded by the left with the purpose of empowering all the crooked and criminals. Legitimatize the thugs while handcuffing the western societies.
At present that section of the UN is as worthy as the UN itself. Infested by Islamic creatures who have not ever called to task Muslim hideous mass murders worldwide. They may periodically pretend to call to order one or another of the Islamic bestial entities who may be more gruesome than is normal among those monsters.
What is that we gain or protect by paying to have the “privilege” of being assaulted by that garbage?