What would Happen if the Int’l Criminal Court Indicted Israel’s Netanyahu?

By Juan Cole | (Informed Comment) —

If the International Criminal Court takes up Israeli government actions in the occupied Palestinian territories, it could well find specific officials guilty of breaches of the Rome Statute of 2002. Article 7 forbids “Crimes against Humanity,” which are systematically repeated war crimes. Among these offenses is murder, forcible deportation or transfer of members of a group, torture, persecution of Palestinians (an “identifiable group”) and “the crime of Apartheid.”

The Israeli government murdered Palestinian political leaders (not just guerrillas) and have routinely illegally expelled Palestinians from the West Bank or from parts of the West Bank illegally incorporated into Israel. They deploy torture against imprisoned Palestinians. Their policies on the West Bank, of building squatter settlements on Palestinian land from which Palestinians are excluded, is only one example of Apartheid policies. Getting a conviction on Article VII should be child’s play for the prosecutor. And there are other articles which Israel is guilty of contravening.

If Israeli government officials or leaders of the squatters in the Palestinian West Bank were convicted by the ICC, would there be any hope of enforcement? Israeli firms doing business in the West Bank would be exposed to billions of dollars of legal actions in European courts and would be unable to sell their goods in Europe, if they were declared fruits of crimes against humanity and apartheid. If the legal actions were brought by Palestine, Israel would be ordered to pay it massive reparations.

The ICC can only work through member states. But it could authorize those states to capture and imprison Prime Minister Binyamin Netanyahu, for instance. While it is unlikely that this could happen, Israel’s leadership might not be able to visit most of Europe, which would isolate them and much reduce their influence. The European institutions in Brussels would take an ICC conviction seriously.

The African Union and the Arab world decided to protect Sudanese President Omar al-Bashir from the ICC verdict against him. According to the African Union, he can freely visit African countries. But he cannot visit Europe or large numbers of other countries without risking arrest. And even in Africa, al-Bashir in 2013 had to abruptly leave the Nigerian capital of Abuja after only 24 hours because a Nigerian international law association filed a court case to have him arrested.

Over a third of Israeli trade is with Europe, and technology transfers from Europe are crucial to Israel. It could be kicked out of European scientific and technological organizations, where it presently has courtesy memberships. And Israeli leaders could end up being afraid to visit European capitals lest they be arrested, Pinochet style (even if governments ran interference for them, they could not be sure to escape lawsuits by citizen groups and could not be insulated from activist judges).

The world wouldn’t end for Israeli leaders if they were convicted, as it hasn’t ended for al-Bashir. But the consequences would be real and unpleasant, and over time could have a substantial impact.


Palestinians decide to join ICC

42 Responses

  1. Steve Smith

    If the ICC were to indict Bibi, I have no doubt he would play those sanctimonious buffoons like a violin, at least during the 3-5 years it would take before they wound down the pre-trial motions and start the prosecution. Without US participation, the ICC is a clown car dispensing victors justice.

    • “Without US participation, the ICC is a clown car dispensing victor’s justice.”

      When the Belgian government attempted to prosecute Ariel Sharon for war crimes due to the Sabra and Shatila massacres of September of 1982, America threatened to pull NATO headquarters out of Brussels.

      The absence of US interests at the ICC is a positive thing for those seeking prosecution of Israeli leaders for war crimes.

    • Don’t you mean with US participation the ICC would be a clown car, just as the Security Council is a clown car.

  2. Steven Smith

    It would take them 5 yrs to get through pre-trial motions, and he would manipulate the proceedings as effectively as Milosevic did.

  3. If the ICC were to take up Israeli crimes, it would be equally obligated to take up crimes such as Hamas’s indiscriminate launching of rockets into Israeli civilian settlements. It would prove interesting to see how far this goes.

    • If the consequences of Israeli and Hamas attacks were factors in sentencing, the penalties would be vastly different.

      • Re Operation Defensive Edge:

        Israel reported $20 million in property damage due to Gaza-based rockets and issued $22 million in compensation payments to Israeli workers due to work stoppages caused by Hamas missile firings.

        Property damage to Gazans is upward of $8 billion.

    • Glad you’re back, Bill. The ICC is a tribunal of consensual jurisdiction, as I understand it. Sounds like the Palestinians might be consenting, knowing what that might mean. The Israelites, like the US, go with their “exceptional” approach:

      Israel voted against the adoption of the Rome Statute but later signed it for a short period. In 2002, the United States and Israel “unsigned” the Rome Statute, indicating that they no longer intend to become states parties and, as such, they have no legal obligations arising from their signature of the statute.

      Israel states that it has “deep sympathy” with the goals of the Court. However, it has concerns that political pressure on the Court would lead it to reinterpret international law or to “invent new crimes”. It cites the inclusion of “the transfer of parts of the civilian population of an occupying power into occupied territory” as a war crime as an example of this, whilst at the same time disagrees with the exclusion of terrorism and drug trafficking. Israel sees the powers given to the prosecutor as excessive and the geographical appointment of judges as disadvantaging Israel which is prevented from joining any of the UN Regional Groups. link to en.wikipedia.org There’s no “obligation” to take up prosecutions of crimes — there’s a process by which matters can be referred for investigation and possibly trial. The jurisdiction I believe is personal — “states” don’t get indicted, rather, individual human leaders who did and ordered Really Bad Stuff that offends the greater conscience.

      The Rome Statute provides that the Office of the Prosecutor shall act independently; as such, no member of the Office may seek or act on instructions from any external source, such as states, international organisations, non-governmental organisations or individuals.[40]

      The Prosecutor may open an investigation under three circumstances:[40]

      –when a situation is referred to him or her by a state party;
      –when a situation is referred to him or her by the United Nations Security Council, acting to address a threat to international peace and security; or
      –when the Pre-Trial Chamber authorises him or her to open an investigation on the basis of information received from other sources, such as individuals or non-governmental organisations.
      link to en.wikipedia.org

      It’s pretty easy to identify who ordered “Casting the Lead” and “mowing the lawn” and assassinating Palestinian leaders that were on the way to maybe actually negotiating in good faith, and the policies of displacement and other bad stuff written about in this blog and even in Ha’aretz and Mondoweiss and maybe even the New York Times. Who will be the person(s) indicted for pinprick rocket and mortar attacks by “Hamas” on the Israeli megalith?

      The ICC has mostly targeted African potentates anyway, so from that source the Bush League and Cheney Gang and lots of others whose conduct and actions grossly offend the common conscience of mankind probably have little to fear (though their “people” are watching, and doing what they can to ensure the “rule of law” only gets applied in one direction and to Empire-approved targets…)

    • The rockets may not be quite as indiscriminate as often described:
      link to haaretz.com
      “The defense establishment is concerned that Hamas has been able to identify when senior officials and IDF officers are visiting Israeli communities in the area surrounding the Gaza Strip.

      On several recent occasions, the organization has fired rockets and mortar shells at kibbutzim in the area exactly when they were being visited by high-ranking officials.”

      • Are the Hamas rocketeers anywhere close to the IDF’s targeting skills when it comes to blowing away Palestinians and their leaders? False equivalence, I would think, with a healthy dollop of Hasbara sauce…

  4. If the ICC works in the same way as our justice (sic) department, Netanyahu and his accomplices have nothing to worry about; however, given outbursts of antisemitism in some nations they may have to check with a good travel agent as to where it would be safe to go and not.

  5. I wish they’d indict Cheney, and everyone, beginning with the top of the command chain, who are responsible for torture.
    Add the responsible people from countries that have CIA black sites.
    And while I’m dreaming, let’s have an airlift of food, medicine and building materials with USAF escorts to Gaza.

  6. In deciding to prosecute any Israeli official, the pressure placed on the ICC would be enormous and would be orchestrated by the US. The US have successfully blocked any sanctions on their ally for decades so I am expecting very little from the ICC.

      • … absolutely no sway over the ICC.?

        It is a good bet the US does and could have sway over the ICC through pressure on intermediaries who do.

        • I can’t think which country a) agrees with US about screwing over the Palestinians and b) has ‘sway’ over ICC.

        • If the US Supreme (?) Court (and others) can get it wrong (e.g., Citizens United, etc.) through a majority influenced by ideological friends, there is no reason to believe the ICC would be immune to unethical persuasions.

  7. Most likely PA would have to live without $400 million US aid then. That’s roughly 10% of PA budget (4.2 billion in 2014)…

  8. “Without US participation, the ICC is a clown car dispensing victors justice.” ( Steven Smith)
    You mean like the UN? …oh no- that’s like a clown car dispensing victors justice because the US is a member .
    About time to restructure the Security Council and do away with the US veto.

    • I totally agree with that, Janine. Yes, indeed, it’s long time that the UN Security Council be restructured and the single veto done away with. Resolutions need to be passed by either a 2/3 or 3/4 majority; this would completely solve the veto problem.

  9. Each step the PA has made has created potential for a consecutive move, and at each point there has been an opportunity for Israel to buckle down and start to accommodate the PA, UN and increasing others. Presenting the UN draft was proceeded by such period with Abbas’ assurance that if it failed he would join the ICC. The ICC signing opens another such opportunity before specific application is put before the court. The difference now is the threats are getting closer to key decision making individuals. Meanwhile BDS advances like dawn and Israel’s behaviour calls to mind Shakespeare’s Richard II: Now mark me how I will undo myself. IV (i)

  10. IHL, ICC or all other humanitarian laws are a mere rubber stamp and a matter of convenience. Should the world not have adopted double standards the above would mean something.
    I wonder how many other nations may follow suit, like Iraq and Afghanistan. As a result, can the days of bush at the icc seem eminent? If not, lets not waste our time to see bibi and Israel take the stand.

  11. Dr. Cole,
    I read about Qutar’s $5.4 billion pledge to PA. Likely US congress will make a big fuss about this but I got the feeling that the US influence is diminishing rapidly.

  12. I think they should indite all the settlers too – and the punishment should be a fine at least equal to the value of their homes per year, something sufficient to discourage the activity.

    As for punishing the Palestinians for the move, well, perhaps it’s a war crime to withhold their own tax funds too.

  13. It seems to me this almost as much a power play against Hamas as it is against Israel. I suspect the PLO would be perfectly happy to see Israel AND Hamas having to deal with the ICC.

    • Hamas itself supports Palestinian membership in the ICC and has welcomed UN investigators in the past who were looking in to war crimes violations against Israel in Gaza.

  14. I am not over familiar with these things but the tax revenue is presumably a debt from Israel to the PA in which case could the PA not sell the debt and the purchaser call it in?

  15. As another commenter has already pointed out, the Rome Treaty gave the International Criminal Court (ICC) jurisdiction only over individuals suspected of serious violations of international humanitarian law. The ICC cannot indict, try or judge states for war crimes and the court cannot compel states to pay compensation. That is outside of its jurisdiction. But the court can try state officials and members of the military responsible for ordering and carrying out acts and policies that result in serious violations of international humanitarian law.

  16. According to them(rolls eyes), we’re all being anti-Semitic and anti-holocaust. That’s how Nitwityahoo and his ilk would combat this whole thing. No charges will be coming because the federal reserve own all the courts and prosecutors, not to mention, most governments and politicians. There is no hope until ‘the people’ start issuing arrest warrants and militias enforce them. This is the only way forward. You’re all sitting around hoping that a Zionist-owned-controlled entity will go after their own. This is like hoping that a few piranhas will go after all the other piranhas for eating a child in the river.

    • Interesting agreement across a large number of political-economic preferences and narratives on the nature of the disease. Too bad us Ordinary People can’t see to agree on remedies. Militias and “the people?” Look closely at how arrest-warrant-issuing armed militias and vigilantes have “governed” in the Mideast, Africa, South and Central America, many parts of Europe since Cro-Magnon ascended to hegemony… But our Rulers do a pretty good job of feeding these Dreams of Liberty ™ to keep us ordinary people divided and impotent. Cliven Bundy, thief, or The Covenant, The Sword and The Arm of the Lord, or David Duke, or the Kochs’ private armies in charge? No thanks. Must be better ways of building legitimacy and a political economy based on comity and sustainability. Maybe.

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