If Israel has committed no war crimes, then why does it refuse the ICC probe?

ICC ruling brings hope for Palestine, dismay for Israel – Cartoon [Sabaaneh/MiddleEastMonitor]

On 5 February, Palestinians saw a long tunnel open and a light flicker in the distance for justice. The International Criminal Court (ICC) Pre-Trial Chamber I “decided, by majority, that the Court’s territorial jurisdiction in the Situation in Palestine, a State party to the ICC Rome Statute, extends to the territories occupied by Israel since 1967.” The ICC now has jurisdiction to investigate crimes the Palestinians say were perpetrated by Israel in the West Bank, East Jerusalem and Gaza. Court prosecutor Fatou Bensouda had previously called for investigations, saying there was “a reasonable basis to believe” war crimes had happened.

Reactions in both Palestine and Israel were as predicted. The Palestinians welcomed the decision. Palestinian Justice Minister Mohammed Al-Shalaldeh welcomed the ICC decision and considered it “historic”.

“The International Criminal Court decision is historic and means immediate commencement in investigating the grave violations on the Palestinian occupied territory,” Al-Shalaldeh said. He added that three files are prioritised for the court, the Israeli war on Gaza in 2014, the Israeli settlements, and the Palestinian detainees in Israeli jails.

Israel’s Prime Minister Benjamin Netanyahu denounced the decision in a written statement. “Today, the International Criminal Court has proven once more that it is a political body and not a judicial institution,” Netanyahu said. “In this ruling, the tribunal violated the right of democracies to defend themselves against terrorism, and played into the hands of those who undermine efforts to expand the circle of peace,” he added.

Anyone expecting a change of American position from the new Biden Administration was quickly disappointed. In a call with Netanyahu, American Vice President Kamala Harris told him that the US opposes ICC investigation into possible war crimes in the Palestinian territories, the White House said.

READ: Israel seeks diplomatic allies against the ICC 

This followed an announcement by US Secretary of State Antony Blinken in which he said that Washington “firmly opposes and is deeply disappointed” by the ICC decision. He emphasised that “Israel is not a party to the ICC and has not consented to the Court’s jurisdiction, and we have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel,” Blinken said in a statement.

Israel would have been a little confused but certainly disappointed that the same administration recently lifted the sanctions on ICC personnel imposed by Biden’s predecessor, Trump in December 2020. Blinken’s team said: “These decisions reflect our assessment that the measures adopted were inappropriate and ineffective.” The administration continues “to disagree strongly with the ICC’s actions relating to the Afghanistan and Palestinian situations” and to object to ICC “efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.”

The US made this decision despite the investigations that may target US military personnel for crimes committed in Afghanistan. One might have expected Israel to follow suit and accept that the ICC is an independent court and that the chief prosecutor has painstakingly consulted before it was ruled that the court had jurisdiction over the Occupied Palestinian Territory and that it would investigate crimes committed by any party, including Palestinian parties going back to 2014. However, those familiar with Israel’s attitude to necessary external scrutiny won’t have been surprised with its formal rejection of the ICC decision to investigate its leaders’ crimes.