International Criminal Court’s Investigation Puts Israeli Officials on Alert

  • Middle East Policy

    Middle East Policy has been one of the world’s most cited publications on the region since its inception in 1982, and our Breaking Analysis series makes high-quality, diverse analysis available to a broader audience.

Views from the Region


This week the European Union issued a sharp rebuke against the Israeli government’s approval of the construction of nearly 2,000 settler units in the Occupied Territories. EU’s statement brought into focus once again Israel’s ongoing breach of international law, which only a few weeks ago triggered an investigation by the office of the prosecutor at the International Criminal Court. That decision was immediately condemned by the Israeli government and some of its allies, including the United States’ and Australian governments. Given such reactions, it is clear that the prosecutor will find obstacles at every turn. However, it is possible that the ICC decision to investigate Israel’s long-running illegal actions in the West Bank and Gaza may very well represent a watershed moment for the future of Palestine.

According to an Al Wafa report, EU’s criticism of Mr. Netanyahu’s actions came after the Israeli government “approved earlier this week the construction of almost 2000 housing units in illegal settlements in the occupied West Bank, including the retroactive approval of already existing constructions, some of which were built on private Palestinian land. This decision follows other settlement-related developments in recent months, ‘including in particularly sensitive places such as East Jerusalem and Hebron’…. ‘The European Union reiterates its clear position that all settlements in the occupied Palestinian territory are illegal under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace, as reaffirmed by UN Security Council Resolution 2334’, said the EU spokesperson.”

But the EU statement and criticism doesn’t concern the Israeli government as much as the International Criminal Court’s intention to begin  investigating Israel’s actions, in particular with regard to what ICC Statute 8 calls a war crime, namely the “transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.” And as a Debka report argues, the Netanyahu administration is taking the threat quite seriously, as evidenced by the government’s decision to “classif[y] as secret all references to the decision of the International Crimes Court in the Hague to probe Israel for offences in ‘Palestinian areas’. The ministers passed the subject over to the security-policy cabinet.”

Asharq Alawsat’s Nazir Magally is also of the opinion that, as he puts, it ‘Tel Aviv fears ICC’s decision’, which may also explain why Mr. Netanyahu has walked back his decision regarding the Bedouin village of Khan al Amar: “A source at the Israeli Foreign Ministry said the ICC was exerting “political terrorism against Israel.” Israeli Foreign Minister Yisrael Katz told Channel 11 News that the Israeli government has been “afraid” to take action against the illegal Bedouin village of Khan al Amar over concerns such an act would be the “last straw” for the International Criminal Court. Israel is also cautious about a decision that comes in advance of the ICC’s pre-trial chamber in the coming 120 days. Tel Aviv awaits the highly anticipated UNHRC blacklist of companies doing business with Israeli entities in the West Bank, east Jerusalem and the Golan Heights.”

The reaction of Israeli observers has been mixed. For example, writing for Times of Israel, Cnaan Liphshiz seems to imply that by starting an investigation into Israel’s actions, the ICC may be able to counter “claims of anti-Africa bias….  The ICC has denied having any focus on Africa, arguing its record of prosecution owes to requests from Africa…. The December 20 pretrial report on Israelis and Palestinians was one of those examinations noted by the court in deflecting criticism over its record on Africa…. Israel is not part of the ICC. The Palestinian Authority is, even though it is not a full member state of the United Nations. More important, however, is the fact that Israel, whose prime minister is facing corruption charges in court, is widely deemed to have a competent judiciary — an asset that places it outside the scope of the ICC’s declared mission statement.”

On the other hand, Yossi Mekelberg, in an op-ed for Arab News, expresses dismay at the reaction of the Israeli government and of the voters, noting that ICC’s investigation should be a cause for reflection and discussion, and not for circling the wagons: “There is no single honest defender of human rights who would not like all human rights violations to come to light and those who commit them named, shamed and made accountable. Neither the shock nor the subsequent panic in Israel at the prospect of being investigated on such serious charges is unexpected or hard to understand. Yet, regardless of the motivations attributed to the ICC for pursuing this course of action, it could and should serve as an opportunity for a national dialogue in Israel on the ills of more than half a century of occupation and blockade of lands beyond its legitimate borders, and how this has eroded the country’s moral fabric.”

The Globes’ Tal Schneider is also among those who lament the unwillingness of the Israeli politicians and electorate to properly respond to the claims investigated by the ICC prosecutor. Instead, Schneider adds, buoyed by the US government’s unconditional support, “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…. 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.”

Given the expressed unwillingness of the Netanyahu administration to cooperate with the International Criminal Court’s probe and the staunch support of the United States for Israel, Arab News’ Ramzy Baroud fears that the ICC will be reduced to a paper tiger unless its investigation is backed up by a meaningful “international agreement that a clear and decisive decision by all parties concerned that Israel must, once and for all, pay for its military occupation, racist apartheid laws, protracted siege on Gaza and the many massacres in between.  Without this kind of international will, the ICC investigation could become another sad case of justice denied — an unacceptable option for any justice-seeking individual, organization or government anywhere in the world.”

Much to the dismay of Asher Fredman, various international advocacy efforts underway may very well accomplish what Mr. Baroud envisions. In a recent Jerusalem Post op-ed, Fredman expresses his own unhappiness about the fact that “It seems that once a month the headlines focus on a new international legal challenge facing Israel. In November 2019, the headlines announced the European Court of Justice’s ruling requiring the labeling of Israeli products from over the Green Line. In December 2019, it was the International Criminal Court prosecutor’s decision on ‘the Situation in Palestine’. Here is the next challenge… : An ‘all-star’ team of European BDS (boycott, divestment and sanctions) groups, under the banner #StopSettlements, has just raised 10,000 euros to bring a case to the European Court of Justice (ECJ) demanding that the EU ban the import of all Israeli goods from Judea and Samaria.”

  • Middle East Policy

    Middle East Policy has been one of the world’s most cited publications on the region since its inception in 1982, and our Breaking Analysis series makes high-quality, diverse analysis available to a broader audience.

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