The court’s rejection of a lawsuit challenging the shooting of protesters in Gaza is a reminder that the Israeli legal system simply isn’t set up to investigate the policy makers and policies that result in alleged war crimes.
Israel’s High Court of Justice may have just inadvertently increased the possibility that senior Israeli officials might themselves show up on the docket of the International Criminal Court one day.
Last Thursday night, the court rejected a legal challenge that sought to strike down the Israeli army’s policy of shooting unarmed protesters in the Gaza Strip. Six Israeli and Palestinian human rights groups had filed two parallel emergency petitions weeks earlier, before the worst of the violence had occurred, hoping to change the rules of engagement in time to prevent more killing.
But their motions to hold emergency hearings were not granted and by the time the justices reached a decision last week, the Israeli army had killed over 110 Palestinians in Gaza — more than half of them on a single day. Israeli snipers shot and wounded more than 3,600 others during the seven weeks of protests that culminated on May 14th.
Weeks earlier, the army had already announced that it was investigating a few of the killings, but it was the policy — the rules of engagement — that authorized Israeli sniper teams to shoot some 3,600 Palestinians that the rights groups had asked the court to review. The court said no.
When most people think of the ICC investigating alleged Israeli war crimes they think of the destruction and carnage the IDF wrought during the 2014 Gaza war. In all likelihood, that is not a realistic prospect. An investigation — and perhaps, one day, an indictment — is far more likely to result from the mass killing and shooting of protesters in recent weeks, or even settlement construction in the West Bank.
Short of simply not committing war crimes, the easiest way for a state to protect its officials and generals from ending up in The Hague is to set up effective, or even seemingly effective mechanisms for investigating itself. At the core of the ICC’s founding treaty, and the at foundation of its jurisdiction, lies the principle of complementarity.
In short, complementarity means that the ICC will only investigate or prosecute alleged war crimes if the national legal systems — where the crime took place — are themselves “unwilling or unable” to investigate and prosecute suspected war crimes. In other words, if the Israeli army genuinely investigates its own soldiers for alleged war crimes, and prosecutes those it believes have committed those crimes, then the ICC has no jurisdiction.
The Israeli army knows this, and it has set up complex investigatory systems in order to satisfy the principle of complementarity. Most human rights groups argue that those investigations — and the rare prosecution that ensues — are entirely ineffective. But truth be told, the mere existence of an investigatory system is a pretty good insurance plan against ICC intervention.
And yet, the larger issue is that Israeli military prosecutors only investigate individual alleged crimes, not the policies that lead to the commission of those crimes or the people who draft those policies. The chance of such an investigation ever taking place in Israel is incredibly improbable for the following reason: the same officials who helped draft and who signed off on the regulations that permitted shooting nearly 4,000 people in Gaza are also the ones who are ultimately charged with deciding whether to investigate and prosecute them(selves).
That structural impartiality of the Military Advocate General (MAG) is innocuously referred to as its “dual hat.” That same dual hat, which effectively excludes decision-makers from any real accountability mechanisms, also precludes them from making an argument of complementarity to stave off an ICC investigation or prosecution.
The same unwillingness to self-investigate, which all but invites international jurisdiction, also exists in another openly stated area of interest for the ICC prosecutor: the settlements.
The Israeli government and army, with the backing of the state attorney general and MAG, are directly responsible for crafting the very legal framework that allowed the settlement enterprise to be born and subsequently thrive for the past half-century.
Expecting those same authorities to investigate and prosecute themselves for the actions they themselves devised and authorized is a whimsical proposition. It is the quintessential example of a legal system that is “unwilling or unable” to investigate and prosecute war crimes committed under its national jurisdiction.
Which brings us back to the High Court of Justice. While Israel’s top court is certainly able to stop most Israeli government and military policies, it has proven time and again that it is largely unwilling to do so.
While the court has been willing to entertain challenges to individual violations, crimes, and injustices regarding the two issues discussed above, it has refused to address the policies behind them.
In the case of Gaza, the court lauded the military’s mechanism for investigating individual allegations of wrongful killings but rejected the petition looking at the legality of the policy of firing on them in the first place.
In the case of the settlements, the court has issued countless rulings on the legality of individual settler homes, and sometimes even entire settlements, but it has consistently refused to adjudicate the legality of the broader policy of creating settlements themselves under international law.
The responsibility for those policies leads directly to the high-level and elected officials who drafted and implemented them, be they Avigdor Liberman declaring that “there are no innocents in Gaza” or Benjamin Netanyahu pledging his full-fledged support for settlement expansion onto Palestinian land in the West Bank.
By giving its silent assent to those policies, thereby leaving them entirely unchallenged, the High Court is increasing the likelihood that Israeli decision-makers might become targets of the ICC prosecutor.
And along with Palestine’s referral to the ICC prosecutor last week, the High Court’s decision to rubber-stamp the use of deadly force against unarmed protesters in Gaza may well turn out to be spoken of in retrospect as as a pivotal moment in Israel’s relationship with the ICC.