ICC has no choice but to investigate settlements as a war crime, a game changer in power politics — Sfard

The ruling by the International Criminal Court that it has jurisdiction to investigate Israeli war crimes in the occupied territories has introduced a “major new actor” into the power politics of the conflict, and sent a chill through the Israeli government to the point that it has abandoned plans to remove Palestinian villages in the West Bank, says Michael Sfard, the Israeli human rights attorney.

Sfard said that court cannot “evade” an investigation and even prosecution of Israeli officials over the illegal settlements policy in the West Bank. And this means that Israel can no longer ignore European countries, including Germany, Britain, France, the Netherlands, and Scandinavian nations, that have repeatedly called on it to end the settlements.

The Biden administration has deplored the ICC case, which was brought by Palestine, as an avoidance of the so-called peace process. But the U.S. is not a signatory to the ICC statute, and its powers are limited.

Speaking to Ori Nir on an Americans for Peace Now webinar this week, Sfard said that Fatou Bensouda, the ICC prosecutor who in 2019 announced an investigation of Israeli and Palestinian war crimes, and then sought the ruling from the court on February 5 that it has jurisdiction over the occupied territories, can now begin an investigation in earnest. But her term ends in June and she is likely to consult with the next prosecutor, the British lawyer Karim Khan.

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And Israel is in a box, Sfard says. It will say that it has legal mechanisms to investigate war crimes stemming from its assaults on Gaza and other atrocities. But Sfard said that Israel has no such figleaf re the settlements.

[Khan] can decide with prosecutorial discretion not to launch an investigation. He can say that Israel has good law enforcement mechanisms, I believe. He can say, I think Israel does it well. However, this cannot be said at all about settlements. Because on the issue of settlements. Israel does not claim to investigate and prosecute. For Israel, settlements are not illegal and so it’s an official policy.

And here there is absolutely no way to evade an investigation.

If the ICC does not pursue the case, that could demolish the court, Sfard said. So far most of the ICC investigations and trials have been of African defendants. And African countries have protested that the ICC was supposed to be a world court– not what it appears to be, a court of the “imperial colonialist entity where the white men is educating the black and brown people.”

If the ICC were to drop a case against Israel, that would cause “a domino effect of developing world countries leaving the court,” Sfard says. “So it’s an existential problem for the ICC.”

While on the other hand, launching the investigation and issuing arrest warrants would potentially “put the court in a clash with European countries,” and Europeans are its major financial and political backing.

Once an investigation is launched, the plot thickens: the process is secret, and Israel should not know officially whether arrest warrants have been issued. Yet Israel surely would know, through the Mossad or allies in Europe. And these warrants would be for “the highest commanders of the army and the political echelon,” including prime ministers and generals.

If they cannot be sure that there is no arrest warrant issued against them, that would make the life of Israeli diplomacy very difficult. It would also put allies in Europe in a corner they don’t want to be.

Let’s say the court issues an arrest warrant to 120 member states. They are all bound by statute to cooperate with the court, and arrest and extradite that individual to the Hague. Imagine the bind this will put European countries in!

Israel is unlikely to be able to stop the investigation through its sizeable political “might,” Sfard said, “because it is trying to push an institution into a wall, the wall of the developing world.”

Thus his conclusion that this is a major development in the power-politics of Israel and Palestine.

“I think the decision of the Pre Trial Chamber has introduced a new major actor into the Israeli Palestinian conflict. And that’s the ICC, the prosecutor and the judges. And that actor is here to stay at least for a while, and that actor does not behave the same way as the political actors, the countries of the world… and Israel has much less ability to maneuver it and to pressure it.”

The ICC case “will create an enormous restraining effect on Israel” over time. We are seeing it already. Consider the case of Al Khan al Ahmar, a West Bank village Israel slated for demolition, and the forcible “transfer” of its 200 residents. “Netanyahu committed himself to remove it,” Sfard said, and the Israeli rightwing is “obsessed” with such moves, and yet Netanyahu has not followed through even in an election season, because the ICC prosecutor issued a statement “saying, I remind the parties that forcible trnasfer is a war crime. That’s all she said, and boom, the transfer of Khan al-Ahmar evaporated and they are there to this day.”

So much for the argument from Israel lobbyists that the only way to change Israel is by hugging it and giving it more money.

Sfard said that in coming weeks and months, the Israeli treatment of West Bank Palestinians and Gaza too is likely to be “very cautious.” Even in cases in which the Israeli court has “koshered” evacuations, such as Susiya in the West Bank.

And though every few years Israel makes a “beastly attack on Gaza… Israeli generals will think twice now.”

Because of power politics:

Not only [is Israel] wary of being tried in the Hague, but they need the assistance and cooperation of European countries in mounting pressure on the court. European powers time and time have condemned settlement expansion, destruction of villages. And Israel was completely ignoring them. Now suddenly Israel needs them.

Israel needs the Germans, the Dutch, the British, the French, and the Scandinavian countries– whom it ignored on settlements– to pressure the ICC. And the message is:

You want us to help you, well at least for the time being don’t commit war crimes! And we consider these things [settlements] war crimes.

So Sfard says the ICC decision is a potential gamechanger.

I think the Palestinians have never had this kind of a card in their sleeve, that actually might restrain Israel. It will also put the annexation idea completely on the highest shelf… Of course, annexation is ongoing all the time, de facto. But the one-act annexation that Netanyahu wanted a few months ago… now seems beyond the horizon.

“These things are very very much new things in this conflict,” he concludes, and this new factor will be with us for years to come, in the “balance of intimidation… between the court and its supporters, and Israel and its supporters.”

I think the decision of the court and the hovering possibility of investigations being launched, and Israeli officials have to stay in Israel — this is potentially a game changer. The Court would not free Palestine from the occupation. But the court could be a huge catalyzer for political processes.

Sfard said his advice to the government of Israel would be, Start treating seriously investigations into war crimes, stop supplying de facto immunity on all human rights complaints. Because Israel does not have serious law enforcement mechanisms when it comes to violations of Palestinians’ rights.

“We have a scarecrow, a photo opp, a shell of agencies, so that we can tell the world, We deal with this ourselves.”

Israel would also need to stop expanding settlements, and work seriously toward ending the occupation. The ICC would stay its hand if Israel began a “process of reconciliation” over human rights abuses. But Israel does not have the internal political strength to do that.

We have a very right wing electorate, and I think it will take time before that electorate will change its taste. And I think we will see larger clashes with the ICC and the international community before Israel will do the right thing.

As for the latest charges of apartheid against Israel, “When it comes to the West Bank, it is on the table” for the ICC, Sfard said.

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