BY David Benger
Last Friday, a three-judge panel at the International Criminal Court handed down a decision authorizing the ICC Chief Prosecutor to pursue an investigation of international crimes committed in the territory of the so-called “State of Palestine.”
The reaction from Israeli officials has been scathing. Chief among them, Prime Minister Netanyahu described the decision as “pure antisemitism,” and Minister of Strategic Affairs Michael Biton called it “a dangerous precedent.”
These reactions, though understandable, are not a reasonable response to the actual threat the ICC is likely to pose. As I wrote six years ago, Palestinian terrorists are more likely than IDF officers to be arrested and charged by ICC prosecutors.
Indeed, when the facts on the ground in the West Bank are applied to the laws that govern the ICC, it becomes apparent that should there be any charges brought by the ICC arising out of the situation in so-called “Palestine,” those charges will very likely be brought against Palestinian terrorists, not Israeli soldiers.
An ICC investigation, once launched, cannot be controlled or influenced by anyone other than the ICC professionals running the show. The fact that Palestinian officials and Palestinian-affiliated NGO’s were responsible for jumpstarting the investigation indicates nothing about how this process will go from here on out.
ICC investigators now have a mandate to investigate everything that occurred in the West Bank and Gaza since 2014.
Those who should be most frightened of the ICC now are Hamas and the Palestinian Authority, whose conduct offers up straightforward war crimes cases. Hamas, for example, stores weapons in civilian areas, routinely uses children as human shields, and indiscriminately targets Jewish civilians in Israel with acts of terror, from rocket attacks to arson.
For a more detailed analysis of Hamas’ violations of international law, read Colonel Eli Baron’s excellent analysis at the MirYam Institute, Part 1here and Part 2 here.
Meanwhile, the PA bankrolls the program colloquially known as “pay for slay,” providing financial compensation to the families of suicide bombers. These are all prosecutable crimes under the ICC charter, and should yield arrests of senior terror leadership.
Members of the Israeli military, conversely, are extremely unlikely to be prosecuted due to the IDF’s sophisticated court martial system. The International Criminal Court cannot prosecute anyone who has been investigated in good faith by a domestic criminal system (a concept known as the principle of complementarity), and so any Israelis who have been court martialed by the IDF will not face ICC prosecution.
So, why, then, have anti-Israel activists advocated so vociferously for an ICC investigation in the Palestinian territories?
There is one category of crimes which has captivated the imaginations of anti-Israel activists, chiefly because complementarity would play no role in the proceedings. The charter of the ICC criminalizes transferring, “by the Occupying Power of parts of its own civilian population into the territory it occupies.”
Certain activists believe this law can be applied to Israeli settlement activity in the West Bank. They are wrong.
First, lawyers for the State of Israel will argue that under settled principles of international law, Israel is not an occupying power. Under general principles of state formation (explained here by Avi Bell and Eugene Konotorovich), the West Bank has been a part of the State of Israel since 1948, notwithstanding Jordan’s short-lived military occupation there. Therefore, Israel is not an “occupying power” and cannot be charged with such a crime.
Second, the Israeli government’s financial subsidies for small villages in Judea and Samaria are far outside the intended scope of this prohibition. The drafters of this section of the ICC statute had in mind widespread and systematic war crimes and genocides during which large groups were moved about for the purpose of extinguishing minority sub-groups.
Indeed, an ICC investigation may be good for Israel in the long run. A thorough investigation carried out by a team of international professionals may finally alert the international community to Palestinians’ systemic and criminal violations of international law.
David Benger is a research fellow at Harvard University. He is a recent graduate of Harvard Law School, where he served as the chapter president of Louis D. Brandeis Center for Human Rights Under the Law, and the Events Chair of the HLS Alliance for Israel, as well as an editor on the Journal of Law and Public Policy and the HLS National Security Journal.