Israel to Ask Allies to Pass ‘Discreet Message’ to ICC Not to Open Alleged War Crimes Probe

Tel Aviv intends to lure “dozens of” its allies to convey a “discreet message” to the International Criminal Court (ICC) prosecutor, Fatou Bensouda, pressuring her not to proceed with the probe into alleged war crimes committed by Israel in the occupied territories, an Axios report said Sunday.

The ICC ruled on Friday that it had jurisdiction to open an investigation into alleged war crimes committed by Israel in the West Bank, the Gaza Strip and East Jerusalem.

The report cited two Israeli officials who said that the country’s foreign ministry sent a classified table (designated as “Urgent”) to its ambassadors around the globe on Sunday. According to the lobbying instructions in the cable, the Israeli diplomats should reach out to foreign ministers and heads of government and ask them to issue official statements objecting to the ICC ruling.

“We ask that (governments) send a discreet message to the prosecutor asking her not to move forward with the investigation against Israeli and not give this case a high priority”, the cable reportedly read.

“You are instructed to tell the highest levels of government that if an investigation against Israel starts it will create a continuous crisis between Israel and the Palestinian Authority that will not allow any diplomatic progress to take place between the parties”, it reportedly added.

Israeli Prime Minister Benjamin Netanyahu lambasted the ICC move on Saturday, calling it “pure anti-Semitism” and called instead to “investigate brutal dictatorships like Iran and Syria.”

“When the ICC investigates Israel for fake war crimes – this is pure antisemitism. The court established to prevent atrocities like the Nazi Holocaust against the Jewish people is now targeting the one state of the Jewish people,” Netanyahu said.

Earlier on Saturday, the Israel Defense Forces called the ICC’s decision biased and said it would continue to protect the security of the country and its citizens, respecting national and international law.

The US Department of State has expressed concerns over the ICC decision to exercise its jurisdiction over Israel. In a statement on Friday, State Department spokesman Ned Price said:

“Israel is not a State Party to the Rome Statute. We will continue to uphold President Biden’s strong commitment to Israel and its security, including opposing actions that seek to target Israel unfairly.”

Israel’s ongoing building of settlements in the West Bank and east Jerusalem would likely be more vulnerable to prosecution than its military actions against Palestinians if the ICC’s top prosecutor decides to open a war crimes investigation.

Such a probe is still a long way off, but the ICC moved a step closer on Friday when it cleared the way for prosecutor Fatou Bensouda to open a war crimes probe against Israel and Palestinian militants.

Any investigation would look at Israeli military actions during a devastating 2014 war in the Gaza Strip and mass border protests that began in 2018. But Israel’s settlement construction in the West Bank and east Jerusalem appears to be open to even tougher scrutiny.

International law bars a country from moving its civilians to occupied territory, making settlement-linked charges perhaps easier to prove than disproportionate use of force on the battlefield. Bensouda declared in December 2019 that she believed there was a “reasonable basis” to open a war crimes probe into Israeli military actions and settlement activity. But first, she asked the court to determine whether she had territorial jurisdiction.

In a 2-1 ruling last week, judges granted her that jurisdiction in the West Bank, east Jerusalem and Gaza Strip. The Palestinians claim all three areas, captured by Israel in the 1967 Mideast war, for a future state. The ruling did not open an actual war crimes probe. That will be Bensouda’s decision. In a brief statement, she said she would closely study the ruling before deciding how to proceed. That process could take months to play out.

In the meantime, Israel has launched personal attacks against Bensouda and accused the court of holding it to unfair standards. It also says the Palestinians don’t have a state and accuses the court of wading into political issues.

Although the Palestinians do not have independence, the state of Palestine was accepted as a nonmember observer state by the U.N. General Assembly in 2012. The Palestinians have used that upgraded status to join dozens of international organizations, including the ICC.

The Palestinians subsequently asked the court to investigate Israeli military practices in Gaza and settlement activities in the West Bank and east Jerusalem. They asked that the investigation go back to June 13, 2014, a date that coincided with Israel’s war with Gaza’s rulers from the Islamic militant group Hamas.

The international tribunal is meant to serve as a court of last resort when countries’ own judicial systems are unable or unwilling to investigate and prosecute war crimes. Israel is not a member of the court and does not recognize its authority, saying it has an independent, world-class judicial system. But the Palestinians say Israel is incapable of investigating itself and claim Israel’s justice system is biased against them.

At this stage, Israel has little to fear. Friday’s decision was an embarrassing setback, but prosecution of Israeli officials remains hypothetical. Yet the ruling opens the door to a potentially troubling scenario in which former and current Israeli officials might risk arrest if they travel abroad. The Haaretz daily reported Sunday that Israel is preparing to brief hundreds of current and former security officials, fearing they could be subject to arrest.

In the Gaza war, over 2,200 Palestinians, including nearly 1,500 civilians, were killed by Israeli fire, according to United Nations estimates. At least 73 people, including six civilians, were killed on the Israeli side, according to Israeli figures.

Still, proving war crimes could be difficult. Israel says it acted in self-defense against nonstop rocket fire against its cities. It also accuses Hamas, which launched rockets from residential areas, of using civilians as human shields.

Israel’s ongoing settlement building on occupied lands, starting half a century ago, could be much harder to defend.

Some 700,000 Israelis now live in settlements built in the West Bank and east Jerusalem. Settlements are widely viewed as illegal based on the Geneva Convention principle that an occupying power is barred from transferring its population to territories captured in war. Population transfers are listed as a war crime in the ICC’s founding treaty, the Rome Statute.

“The settlement issue is really the biggest issue. This is the elephant in the room,” said Yuval Shany, an expert on international law at the Israel Democracy Institute.

Israel annexed east Jerusalem after the 1967 war and considers the area an inseparable part of its capital. It says the West Bank is “disputed,” not occupied, and its fate should be decided through negotiations.  Yet the Israeli positions have little support internationally, particularly since the departure of the settlement-friendly Trump administration last month.

Shany said the court ruling means that Israeli settlement policy could come under hard-to-defend scrutiny.

“This exposes basically the entire Israeli political elite that has been part of a settlement policy to criminal proceedings before the court,” he said. “This is a significant setback.”

In her 2019 decision, Bensouda also found a reasonable basis to conclude that Hamas and other Palestinian militant groups in Gaza committed war crimes by launching rockets indiscriminately toward Israeli population centers. Hamas welcomed the court’s ruling but declined to comment on the possibility that it could also be the subject of a future probe.

The London-based rights group Amnesty International said that the rival Palestinian Authority, which administers autonomous enclaves in the West Bank, could also come under scrutiny over allegations that it tortures political rivals and has encouraged attacks against Israelis.