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On January 16, 2015, Fatou Bensouda, prosecutor of the International Criminal Court (ICC), announced her decision to open a preliminary examination of the situation in “Palestine.” The significance of this decision should not be underestimated, though at the same time this is not a surprise. Once the position was adopted that “Palestine” is a state that can join the Rome Statute, it was clear that a Palestinian request to carry out an investigation of the events would be met. Israel should respond calmly and determine the correct course of action in order to minimize the damages of such an examination and increase the chances of preventing an actual investigation. Harsh responses, even if they are related to the election campaign in Israel, are not the correct path.
Significance and Recommendations:
1. The decision to open a preliminary examination should be taken seriously, but it is not cause for undue pressure. There is still a long way to go before an investigation is opened, and it is not at all certain that indictments will be issued against Israelis.
2. The court is a professional body. Like any international body, it has political affinities and is greatly influenced by the position of UN officials. Nevertheless, it is not correct to view it as a purely political body. The court is recognized as an institution that includes professional jurists. Therefore, severe condemnations of the court, not to mention calls to disband it, are not constructive. At best, they portray Israel as irresponsible, and at worst, as a state that believes it has committed war crimes and fears being caught.
3. Israel must continue to argue that “Palestine” should not be considered a state for purposes of the Rome Statute. Israel has strong arguments on this issue, even though the chances of their being accepted are not great, given the opinion of the UN’s legal department and the fact that the prosecutor has already expressed a firm position on this subject.
4. At the same time, Israel should prepare for the possibility that the examination will continue. If Israel undertakes serious investigations of the allegations that it committed war crimes, this will be an effective and significant obstacle to an investigation against these acts.
5. Israel should prepare legal arguments on several key issues, including the status of the territories as occupied, and in particular, the Gaza Strip, and the question of the relevant legal framework applicable to the conflict with Hamas (international or non-international conflict), which affects the applicability of some of the criminal charges.
6. Serious consideration should be given to cooperation with the preliminary examination process in order to increase the chance that the court will be convinced that Israel is investigating itself and in order to gain time. This is what other countries are doing, including, for example, Russia, even though it is not a party to the court. Cooperation does not necessarily indicate acceptance of jurisdiction or surrender to the dictates of the court, but it would also make it possible to present all of the Palestinians’ crimes formally and in an orderly manner, and in particular, those committed by Hamas.
7. Positions should be coordinated with other countries that have forces involved in fighting, such as the United States, Great Britain, Canada, and NATO countries (and discreetly with other countries as well). Problematic rulings about the IDF’s military activity will also affect them. They therefore have a direct interest in preventing such actions from being investigated, let alone in preventing indictments in such cases.
In conclusion, the significance of the prosecutor’s decision to open a preliminary examination should not be underestimated. Nevertheless, this is not a surprise. Once the position was adopted that “Palestine” is a state that can join the Rome Statute, it was clear that a Palestinian request to carry out an investigation of the events would be met. Israel must respond calmly and determine the correct course of action in order to minimize the damages of such an examination and increase the chances of preventing an actual investigation. Harsh responses, even if they are related to the election campaign in Israel, are not the correct path.
Written by: Pnina Sharvit Baruch