With International Criminal Court Prosecutor Fatou Bensouda taking another big step forward against Israelis on Wednesday regarding the 2014 Gaza war and the settlement enterprise, how badly does Jerusalem view the situation?
The speed with which the decision was reached was the factor for Israel that was the most disappointing aspect of Bensouda’s decision.
There was hope in Israel that given that the February 5 ICC Pre-Trial Chamber decision supporting Bensouda was a narrow 2-1 split, and that her successor, attorney Karim Khan, was recently elected, she might leave the decision to him.
Bensouda also hinted in a public speech in February that she would wait to make any new major decisions until she had consulted with Khan and refused in mid-February to commit to a decision on the issue before her term ends in June.
A crucial point that Israel still needs to clarify is whether Bensouda made this decision with Khan’s support or over his objection in an attempt to try to lock him onto the path she has charted.
Some in Israel hoped that Khan’s British citizenship (England is – broadly speaking – an Israeli ally), his defense of top Kenyan officials from war crimes allegations, and past criticism of the ICC Prosecutor’s Office as overly aggressive with pursuing weak evidence all would lead him to take Israel’s side.
The answer to this will likely come in June or in the following months when Khan will either decide to continue the full war crimes probe or to end it.
If Khan continues down Bensouda’s path against Israel, the next question is how quickly and whether there might be any threat to Israelis being arrested or indicted.
Bensouda made two key points on these issues, both of which indicate Israel has years, or in the worst case several months, before anyone would face arrest.
She said, “Our assessment will remain ongoing in the context of the investigation to allow for a continuing assessment of actions being taken at the domestic level in accordance with the principle of complementarity.”
“Complimentarity” is the idea that the ICC cannot indict citizens of a state that has investigated war crimes allegations against its own soldiers.
It is expected that the ICC may take an extensive amount of time to decide whether it can move forward against the IDF, because Israel has probed its own soldiers for alleged war crimes.
Other full war crimes probes have taken years before getting to the point of arrests or indictments.
The other point that will delay any imminent threat of arrests was Bensouda’s statement: “How the office will set priorities concerning the investigation will be determined in due time, in light of the operational challenges we confront from the pandemic, the limited resources we have available to us, and our current heavy workload.”
Simply, Bensouda admitted that her office has limited resources and many cases, and that this reality will limit how fast she can move forward with the criminal probe.
This could be especially true in the case of Israel, where the extent of the information and details regarding some of the alleged war crimes incidents is voluminous.
If arrests are off in the future, indictments are even further off, and probably would take place only after appeals were filed to the ICC’s Appeals Chamber regarding all of the jurisdictional issues on which the ICC Pre-Trial Chamber has ruled against Israel.
Wednesday was another tough day for Israel before the ICC, but there are still plenty of exit points that Khan could take to avoid an even larger conflagration.