ICC ruling: What are the real implications for Israel?

FEBRUARY 6, 2021 17:24

The International Criminal Court (ICC) in the Hague ruled over the weekend that the court has jurisdiction to investigate Israelis for actions they carried out in Gaza, the West Bank and east Jerusalem.

What are the implications of such a decision?

Prof. Yuval Shany, vice president of research for the Israel Democracy Institute, explained that “we have a long way to go before the investigations mature into indictments against specific individuals and arrest warrants. By then the prosecution will also have to formulate a position on whether IDF internal investigations are sufficient to prevent the prosecution of soldiers.”

He explained that in a similar case involving the actions of British soldiers in Iraq, the court recently imposed low standards on formal investigations. As such, “the likelihood [is] that military investigations into Operation Protective Edge will prevent proceedings against IDF soldiers in connection with this operation.”

Moreover, he clarified that the court determined that since the Palestinian Authority joined the Rome Statute it should be treated as a state, and therefore the tribunal is empowered to adjudicate. It did not, on the other hand, rule on or accept any argument that the PA meets the general conditions for state recognition as per international law.

The decision is relevant “only pertinent with regards to the interpretation of the powers of the court itself,” Shany stressed, and it reduces the significance of the decision.

“The majority ruling accepted the claim that the ‘67 borders are the determining borders for the tribunal,” Shany continued. “This is problematic for Israel, as it allows the court to proceed with the investigation into whether Israel committed the crime of ‘transfer by the occupying power of parts of its own civilian population into the occupied territory.’”

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On the other hand, he concluded, the judges did not decide whether the Oslo Accords are relevant to the Palestinians’ ability to cooperate with the tribunal in connection with the investigation against Israeli citizens. Rather, he said, they held that “the issue would be examined later if and when arrest warrants are issued.”