When will the ICC rule on the war crimes probe against Israel?
Last week, some non-lawyer Israeli officials were predicting the ICC decision would come down before an expected Israeli annexation decision on July 1.
By YONAH JEREMY BOBInternational Criminal Court(photo credit: FLICKR/GREGER RAVIK)
So when will the International Criminal Court Pretrial Chamber rule on whether a full war crimes probe will open against Israel?In the balance is whether Israel will face a new level of scrutiny and global pressure for IDF conduct during the 2014 Gaza War, as well as with the settlement enterprise.The predictions about when there will be a ruling have been all over the place.Last week, some non-lawyer Israeli officials were predicting the ICC decision would come down before an expected Israeli annexation decision on July 1.The idea was that the ICC might want to pressure Israel not to annex by opening the full probe and threatening potential indictments down the line.Of course, the ICC did not rule before July 1.There also was no annexation announcement, but the ICC judges did not know that in advance.They decided to push off their decision and to see what Israel decided on July 1.July 1 is not the first fake deadline to be missed.When ICC Prosecutor Fatou Bensouda filed her recommendation to open a full war crimes probe on December 20, she requested that the judges rule by March 20.
That deadline is ancient history for a few reasons.First, the ICC Pretrial Chamber decided to accept briefs from countries and NGOs around the world about the question of whether Palestine is a state and whether the ICC has jurisdiction.If one concludes Palestine is not a state – as Israel and seven countries supporting it argue – then there is no ICC jurisdiction.All of these third-party briefs would have probably extended the process until at least May.But then came the coronavirus which closed down the ICC headquarters.This delayed Bensouda’s response to all of the third-parties.Then PA President Mahmoud Abbas declared in mid-May that the PA was absolved of the Oslo Accords.This led the ICC judges to ask Bensouda, the PA and Israel if Abbas’s announcement had changed their views on whether there was ICC jurisdiction.Israel did not respond, but was given a June 24 deadline if it had wanted to respond.This meant that any ruling before July 1 would have been literally right before July 1.However, when The Jerusalem Post consulted experts with close knowledge of the ICC’s workings, they said that speculation about a ruling before July 1 was by non-legal officials who did not really understand how the tribunal works.Having received legal briefs about the Oslo Accords in mid-June, a decision in August would be pretty quick.The real question now is whether the ICC wants to rule before the US presidential election or delay until mid-November with the hope that a new president Joe Biden will be more friendly to them.Recently, the Trump administration imposed financial and travel sanctions on the ICC for probing US treatment of Afghan detainees in 2003-2004 and for its continued probe of Israel.Biden would probably also oppose ICC probes of the US and Israel, but not with the same vehemence or animus.At the same time, Bensouda will press the ICC to decide sooner.Her key date is not November, but June 2021, when she must step down.In an interview in January, Bensouda told the Post that she hopes to file a second report about whether the IDF’s investigations comply with international law before leaving office.The longer the ICC Pretrial Chamber deliberates, the less chance she will have that opportunity.So whether the ICC judges move faster or slower also gives us a hint as to whether they want to empower Bensouda, or wait her out with the hope of getting a prosecutor who will not thrust them into as many controversial issues.
