International Criminal Court (ICC) prosecutor Fatou Bom Bensouda announced last Friday that, subject to a legal hearing on the question of authority, Israel was committing war crimes as defined in the Rome Statute, under which the ICC operates. According to Bensouda, Israel's main problem is not its policy in warfare in the Gaza Strip, but its policy of many decades on the Israeli communities in Judea and Samaria.
The question of the ICC's jurisdiction arose because of the complicated status of Judea, Samaria, and the Gaza Strip, and the fact that the Palestinian Authority is not a country. The ICC will discuss this matter as a precedent of the court in 120 days.
These 120 days give Israel time to delay the ICC's proceedings in the Hague, and political officials in the Prime Minister's Office and the Ministry of Foreign Affairs will have to assemble their best connections and maneuvers in both the US and Russia for this purpose. Like Israel, these two superpowers originally signed the Rome Statute, but did not ratify it, and announced many years ago that they were unwilling to conform to its principles.
Israel opposed ratification of the Rome Statute for many years, mainly because of Article 8, which classifies "The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory" as a war crime. Most of Israel's problems come from this article.
The close relations between the US and Israel are a good enough reason, so that already late last week, it was possible to hear the beginning of statements that the US would aid Israel in its struggle to halt the ICC's involvement in criminal decisions against senior Israeli officials.
On the other side, Russia, whose relations with the US have been very difficult in recent weeks, has different special interests. In recent years, Russia has been directly criticized by the ICC because of its conquest of the Crimean peninsula. In the arguments heard in Israel, the Russian context was not mentioned. Behind the scenes, however, the experts are aware of Russian opposition to ICC's measures, and may attempt to also recruit Russian support for the struggle against the ICC.
The force that Israel has used for years against the attack tunnels and shooting at Israeli communities by terrorists has been documented as being proportional. Where the transfer of a population into "occupied territory" is concerned, however, i.e. the Jewish communities in Judea and Samaria, the Israeli argument is that the territory is not under Israeli occupation, because it was not in the possession of any other country before 1967.
In the coming weeks, because of the Israeli elections, the discussion of the ICC's actions will lean in a demagogic direction, without explaining to the Israeli public that very delicate, complicated, and challenging diplomacy is involved, requiring, among other things, quiet action behind the scenes, not necessarily belligerent statements that can be put on campaign posters.
Published by Globes, Israel business news - en.globes.co.il - on December 22, 2019
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