Who will try to ar­rest Is­raelis first, ICC or In­ter­pol?

The Jerusalem Post - - NEWS - • By YONAH JEREMY BOB

Fol­low­ing last month’s ac­cep­tance of the “State of Pales­tine” as a mem­ber of In­ter­pol, a new ques­tion has come to the fore: What is the great­est le­gal threat now to Is­rael, In­ter­pol or the In­ter­na­tional Crim­i­nal Court?

Both in­sti­tu­tions have the po­ten­tial au­thor­ity to is­sue in­ter­na­tional ar­rest warrants against Is­raelis for al­leged war crimes.

At first glance, it seems that In­ter­pol is a greater threat. The In­ter­na­tional Po­lice Or­ga­ni­za­tion has fewer re­quire­ments and le­gal pro­ce­dures to go through be­fore is­su­ing warrants, mean­ing the process could be faster if the Pales­tini­ans want to at­tack Is­rael with le­gal means. Un­like the ICC, In­ter­pol can is­sue an ar­rest war­rant with­out a pre­lim­i­nary or full crim­i­nal in­ves­ti­ga­tion.

That said, the le­gal es­tab­lish­ment in Is­rael is not overly con­cerned with In­ter­pol, mainly be­cause the or­ga­ni­za­tion can­not bind its mem­ber states to act on ar­rest warrants the way ICC can, whose mem­bers are legally ob­li­gated.

In­ter­pol, for ex­am­ple, has a clause that can ex­empt mem­ber states from is­su­ing ar­rests which are “po­lit­i­cal” and vi­o­late “neu­tral­ity.” More specif­i­cally, In­ter­pol’s web­site ex­plains: “Our Con­sti­tu­tion pro­hibits ‘any in­ter­ven­tion or ac­tiv­i­ties of a po­lit­i­cal, mil­i­tary, re­li­gious or ra­cial char­ac­ter.’”

It is true that In­ter­pol could take an ag­gres­sive Pales­tinian-friendly in­ter­pre­ta­tion re­gard­ing these fac­tors and ig­nore ob­jec­tions by Is­rael and its al­lies. But the Is­raeli le­gal sys­tem deems this un­likely, based on In­ter­pol’s track record and the neg­a­tive con­se­quences that could have on In­ter­pol re­ceiv­ing co­op­er­a­tion from Is­rael and its al­lies.

The ICC, though, is dif­fer­ent and poses a great risk. Here’s why:

In 2015, after the Pales­tini­ans suc­ceeded in join­ing the ICC, Chief Pros­e­cu­tor Fa­tou Ben­souda de­cided to open a pre­lim­i­nary ex­am­i­na­tion of the set­tle­ment en­ter­prise and into al­leged IDF war crimes com­mit­ted dur­ing the 2014 Gaza war, also known as Op­er­a­tion Pro­tec­tive Edge.

Since then, Is­rael has care­fully been mon­i­tor­ing the sit­u­a­tion, wor­ried that Ben­souda would move her pre­lim­i­nary probe into a full crim­i­nal in­ves­ti­ga­tion that would then lead to ar­rest warrants against top Is­raeli of­fi­cials.

In Fe­bru­ary 2016, though, Ben­souda told The Jerusalem Post that it might take her sev­eral years to make a de­ci­sion. The ICC Pros­e­cu­tion later vis­ited Is­rael in Oc­to­ber 2016, and since then there has been lit­tle sign of ac­tiv­ity.

Nev­er­the­less, and while the ICC probe seems to be drag­ging on, its slow progress should not be mis­taken for hint­ing that Is­rael is off the hook.

When Ben­souda told the Post that her probe would take time, there were in­di­ca­tions that she would not give Is­rael a free pass and would de­mand a stricter ap­proach than Is­rael has taken in its in­ves­ti­ga­tions of some of the Gaza war al­le­ga­tions.

While the IDF got off to a fast start prob­ing al­leged war crimes, three years later, there are still three out­stand­ing cases await­ing the mil­i­tary ad­vo­cate-general’s de­ci­sion on whether to close them or open a crim­i­nal in­ves­ti­ga­tion.

Granted, com­plex in­ci­dents like these are dif­fi­cult to clar­ify. But the IDF has not re­leased an up­date about the sta­tus of its probes into the in­ci­dents in Rafah, She­jaia and Khan Yu­nis since the ini­tial re­view was opened after the war.

The ICC is not au­tho­rized to open in­ves­ti­ga­tions when it feels that the coun­try un­der re­view has an in­de­pen­dent and strong le­gal sys­tem and has suf­fi­ciently probed it­self. The fact that three cases are still out­stand­ing could have se­ri­ous ram­i­fi­ca­tions since it will be dif­fi­cult for Is­rael to de­fend it­self with­out demon­strat­ing progress on these cases.

The IDF did not pro­vide a time frame for when these cases will be re­solved but did is­sue the fol­low­ing re­sponse to the Post’s queries:

“The IDF sees great im­por­tance in the ex­am­i­na­tion of al­le­ga­tions of vi­o­la­tions of the Law of Armed Con­flicts or other mis­con­duct by IDF forces dur­ing hos­til­i­ties. Start­ing while the 2014 Gaza Con­flict was still on­go­ing, and con­tin­u­ously since, the IDF Mil­i­tary Ad­vo­cate-General’s Corps has re­viewed al­le­ga­tions and other re­ports re­gard­ing hun­dreds of in­ci­dents which al­legedly took place dur­ing the con­flict.

“The mil­i­tary ad­vo­cate-general (MAG) ordered crim­i­nal in­ves­ti­ga­tions into 30 of these in­ci­dents. Most of these in­ves­ti­ga­tions have been com­pleted, and most of which have been re­viewed and de­cided upon by the MAG. The find­ings of the re­main­ing com­pleted in­ves­ti­ga­tions are in dif­fer­ent stages of re­view. With re­gard to many other al­leged in­ci­dents, it was found that there were no grounds for a crim­i­nal in­ves­ti­ga­tion.

“Ad­di­tional in­ci­dents are still un­der re­view by the MAG Corps. The IDF ded­i­cates sub­stan­tial re­sources to the ex­am­i­na­tion and in­ves­ti­ga­tion of the al­le­ga­tions and re­ports re­ceived re­gard­ing the 2014 Gaza Con­flict. Nat­u­rally, ex­am­in­ing and in­ves­ti­gat­ing al­leged in­ci­dents which oc­curred dur­ing in­ten­sive and pro­tracted hos­til­i­ties, in ar­eas not un­der IDF con­trol, and which in­volve Gaza Strip res­i­dents un­der Ha­mas con­trol, is a com­plex and time-con­sum­ing process.”

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