Israel finally weighing state inquiry to block ICC – but will it be too late?

Israel finally weighing state inquiry to block ICC – but will it be too late? ICC PROSECUTOR Karim Khan speaks during an interview in The Hague, earlier this year.

Israel’s political and legal establishments have been seriously discussing for some time opening a state inquiry into whether the government’s war decisions complied with international law, The Jerusalem Post has learned.

A key purpose of such an inquiry would be to stave off intervention by International Criminal Court Prosecutor Karim Khan, who requested on May 20 that the ICC Pretrial Tribunal approve arrest warrants for alleged war crimes against Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant.

According to the ICC’s own Rome Statute, it cannot intervene if a country is or has already probed its own citizens’ alleged crimes, that is, if Israel carries out its own inquiry.

But has the government and the legal establishment already missed two opportunities to open an effective inquiry, and will it now be too late?

The Foreign Ministry, Justice Ministry, and Prime Minister’s Office all refused to publicly comment for this article. The Post hopes to get responses from them and from the IDF legal division at a later date.

Prime Minister Benjamin Netanyahu speaks with Israeli Justice Minister Yariv Levin during a government conference at the Prime Minister's office in Jerusalem on May 28, 2023 (credit: YONATAN SINDEL/FLASH90)

The first opportunity occurred between January 27 and May 20.

On January 27, Israel dodged a bullet at the International Court of Justice, when the ICJ lambasted the IDF rhetorically, but essentially declined to intervene in the war and postponed ruling on charges of genocide until a much later date.

However, it was apparent that the ICJ took the charges seriously and did not approve of the IDF’s conduct.

The Hamas-run Gaza Health Ministry estimates, accepted relatively uncritically worldwide, maintained then that Israel killed around 25,000 Palestinians, of whom Israel claimed at least 9,000 were combatants.

ICJ made its doubts on Israel clear

The ICJ demanded a monthly report 30 days later to ensure that Israel conducted the war within legal parameters.

Meanwhile, International Criminal Court Prosecutor Karim Khan had accused Israel already in late October of alleged war crimes.

By mid-February, Khan had threatened that he would go after Israelis for war crimes if the country dared to invade Rafah.

This was a moment when opening a state inquiry would have stopped the ICC in its tracks and would have presented the Jewish state to the ICJ, the US and its allies in Europe as self-questioning and proactive. Instead it created the impression of being dragged into examining itself.

Likewise, the IDF legal division and the broader government legal apparatus including the Foreign Ministry, the Justice Ministry, the National Security Council, and the Prime Minister’s Office, could have already publicized the many criminal probes that had already been opened, and set benchmarks for when public reports on some of those probes would start to come out.

That did not happen.

IT IS UNCLEAR if it did not happen because the government was against it, the IDF was against it, or both were, as well their legal advisers.

What is known is that the ICJ process did kick-start some new legal processes that seemed to have been moving very slowly during the first four months of the war.

With the ICJ threat hovering, top Foreign Ministry, Justice Ministry, and IDF legal officials decided it was important to map out the status of the operational probes relating to alleged war crimes.

Part of this process included vetting the files for cases that involved higher numbers of alleged civilian casualties or which had received greater media attention, such as incidents in which the IDF allegedly mistakenly killed journalists in Lebanon with no suspected terror ties.

Another part of the process involved categorizing files according to how far along the initial probes were and how quickly they might be resolved, at least partially.

However, this process was only carried out so that top IDF and government legal officials would understand the degree of Israel’s potential exposure, and how quickly some kind of an interim report might be rolled out, should the need arise.

Shortly after the ICJ January decision, the IDF legal division and government continued to gather high profile cases to move forward with more rapidly, but decided to do so only for internal consumption.

Challenges

Part of the problem is that while the 2014 Gaza conflict spawned 500 initial probes and 32 full criminal probes, the scope of the current war so dwarfs that conflict that the IDF expected to have to perform many thousands or more initial reviews to decide how many criminal probes would be necessary.

While some IDF probes from 2014 saw initial results within months of the 50-day war, some took as long as four years.

Taking into account the much larger number of initial reviews that would need to be performed this time, the IDF also increased its staff dedicated to the task.

However, no public information was forthcoming, and when the US demanded a special report in late March about Israeli compliance with international law, Israel’s government and legal establishment again looked like it was dragged rather than proactive.

There are no indications that Israel shared with the ICC what it had shared with the US during that private report, and certainly none of the report was made public.

Once again no one publicly discussed a state inquiry of the war’s decision-makers, which ironically could have shield those decision-makers from the ICC.

The world and the US further turned against Israel and its explanations about compliance with international law on March 31 when the IDF killed seven aid workers from the World Central Kitchen organization.

Showing that Israel did have the capability to produce public information on a rapid basis when it was strongly pressured by the US, the IDF produced a full investigation within days, and even fired or censured multiple senior officers.

However, the Post understands that whereas Israeli leaders could have used this model to then produce similar quick probe results over the course of April, and open a state inquiry of governmental war decisions, top defense officials patted themselves on the back for again dodging a bullet, believing that the controversy was behind them.

On May 6, the IDF invaded Rafah and, as promised, two weeks later Khan announced he was seeking arrest warrants against Netanyahu and Gallant.

Israel had missed its first chance to head off disaster.

It had failed to announce any comprehensive public results from its own war probes. Despite the passage of eight months it had failed to open a state inquiry.

Only a week after Khan’s decision, did the IDF legal division first reveal on May 27 that it had opened 70 criminal probes.

Why couldn’t this information have been provided in February, March, or April?

Why was it made public only after it was too late to stop Khan going public?

Various ministry officials have told the Post that they thought they had more time, that Khan was due to visit Israel, and that he deceived them by canceling his flight at the last moment and then making his arrest warrants public.

And there are many questions about Khan’s conduct regarding the canceled Israel visit, which the US has also raised.

But Khan had made himself clear in October, and even more clear in February, about what he would do if the IDF went into Rafah.

KHAN MAY SAY that if the IDF had not gone into Rafah only weeks before he was due to visit, he may have waited longer, and that it was Israel which poisoned the waters by not, at least, delaying the Rafah invasion.

Along those lines, Khan likely believed he had unprecedented backing to go after Israel.

In early May, both US President Joe Biden and US Secretary of Defense Lloyd Austin went out of their way to talk about having frozen a weapons shipment to Israel, fearing that the IDF might kill too many civilians in Rafah.

This was not long after the US State Department came after the Netzach Yehuda battalion and some other IDF battalions with sanctions for alleged war crimes.

Israel managed to get the US to postpone or back off those sanctions, but these also should have signaled that going public with a state inquiry into government decisions and with more information about IDF probes was desperately overdue.

Instead, once again it looked, at least in public, as if Israel was patting itself on the back for getting the US to put off the sanctions.

Israeli lawyers could note how many of these issues are political – Some US officials say that the freeze on one Israeli weapons shipment is still in place because of a video Netanyahu publicized attacking Biden.

But on previous occasions lawyers pushed more publicly for the political echelon to take certain actions; for example to drop the judicial overhaul, follow through on the haredi draft, not to annex illegal West Bank outposts on private Palestinian land without comprehensive legislation consistent with Israeli law and international law.

No Israeli government or IDF lawyers made such calls public, and it was left to former officials to make some of these suggestions, which were all ignored, at least until Khan’s move for arrests on May 20.

This brings us to the second missed opportunity.

On May 21, Israel could have announced a state inquiry into government war decisions.

This would have made Khan look like he jumped the gun.

Politically in Israel it might have been interpreted as a surrender of sorts, but that would only be because the state inquiry was not opened at a much earlier date.

Even if was not announced on May 21, how is it that almost two months later, Israel still has not moved forward with such an obvious way to stop the arrest of Netanyahu and Gallant?

How is it that there are still no public benchmarks or dates set for when reports on some of the 70 criminal probes Israel has opened will be released?

There is something positive about the fact that at least top Israeli lawyers and politicians are now seriously discussing the idea.

But the ICC pre-trial tribunal has already had seven weeks to consider the idea without Israel using the state inquiry defense.

Israel probably has some more time as the UK or some other countries might file interventions on its behalf this coming Friday and in the coming weeks.

Yet, that whole process has a much better chance of leading to the ICC pre-trial tribunal rejecting or postponing Khan’s request if Israel is moving expeditiously on a state inquiry and is more open about its IDF probes.

If Israel waits until all the countries have filed on the issue, it may find itself once again “suddenly” rudely surprised by the ICC deciding against it before it has time to announce a state inquiry.

There are important issues to debate about the state inquiry: should it be with a mandate completely outside governmental authority, should it be a government commission, should there be international observers? Israel did that with the tremendously successful Turkel Commission which probed Israel’s governmental decisions and headed off many war crimes allegations against Israel after the 2014 Gaza conflict.

But the most important decision it can make is to move forward now before it is too late – that is, if it is not too late already.

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