by Yoav Limor
Even if no investigation is opened, the IDF will have difficulty operating against terrorists who use civilians as human shields when the threat of the ICC is hanging over its head.
Starting Friday evening, Israel's diplomatic-security-legal systems have been on high alert because of the International Criminal Court's decision that it has the jurisdiction to investigation Israel for alleged "war crimes."
The court's ruling throws the hot potato decision about whether or not to launch an investigation against Israel into the lap of ICC Chief Prosecutor Fatou Bensouda. Next month, Bensouda's successor will be elected (the change of guard is slated for this summer), and it's still unclear whether or not Bensouda will make a decision by then, and if so, what. She can decide to launch an investigation or to shelve the idea. Israel, obviously, will exert heavy pressure to have the case closed, but high-ranking officials have expressed regret about whether that will happen without what they call "heavy guns" from the US and other western nations.
Israel has been preparing for a few months for the possibility that an investigation of this kind might be launched, and its possible ramifications. As a first step, a list was prepared of a few hundred officials who might become the subject of a probe. The list includes some of the top government echelon (heads of states and ministers are not immune from ICC trial), as well as top officials in the defense establishment and many IDF commanders, including senior and mid-level officers who fought in Operation Protective Edge in 2014; as well as events near the Gaza border fence in 2018. The list has not been made public out of concern that the individuals could become potential suspects in an investigation. However, it is likely that all senior officials will be briefed on what to do going forward. Past experience teaches us that they will be asked to inform the government ahead of time about every planned trip abroad to avoid situations in which they are detained outside of Israel.
While Israel expects that any decision about an investigation, should one be launched, will be announced, the chief prosecutor has the authority to open a secret probe. In such a situation, Israel would find it difficult to defend officials who might find themselves under investigation, and will need help from any countries where these officials might be. All ICC member nations are required to respect the court's rules, and therefore arrest anyone whom the ICC wants to investigate and hand them over to investigators, but Israel is hoping that in an "extreme scenario," as one high-ranking official put it, "that can be avoided." One way of ensuring that would be to receive arrest warrants ahead of time and prevent those named therein from traveling abroad.
The same official added that in consultations the Justice Ministry, Foreign Ministry, Defense Ministry, and the IDF have held since the ICC's decision was made public on Friday, a decision was taken to "keep the defense establishment out of the picture." This means that the decision will be fought on the diplomatic and legal fronts, while a "defensive canopy" will be set up to cover all defense officials involved in the actions in question. Defense Minister Benny Gantz and IDF Chief of Staff Lt. Gen. Aviv Kochavi put out a condemnation of the decision that included unwavering support for and a promise to defense IDF commanders and soldiers involved in said actions.
But even if there is no investigation in the end, the ruling should still worry Israel, because it takes another bite out of its legitimacy. When there is always the possibility of escalation on each of the country's four fronts – Gaza, Judea and Samaria, Lebanon, and Syria – Israel will find it difficult to operate with a constant threat of international criminal probes hanging over its head.
This, more than anything else, is the problem with the ICC's decision – not only is it legally wrong ("Palestine" is not a state, and certainly does not have clearly defined borders), it is also dangerous because it is detached from the security and defense reality with which Israel – and other countries, like the US and Britain (which has already found itself under similar investigation) – grapple.
The IDF has made mistakes, certainly in war. But it investigates them appropriately and also metes out punishments and learns lessons, and above the IDF there is an independent legal system that does not hesitate to intervene when necessary. On the other than, there are terrorist organizations that exploit the civilian population as human shields and operate among them against Israel's civilian population. From that perspective, the ICC's decision is not only anti-Israel, it is against anyone who takes part in the global battle against terrorism.
Yoav Limor
Source: https://www.israelhayom.com/opinions/the-icc-aids-and-abets-terrorism/
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