The Road to an ICC Probe of Alleged Israeli War Crimes: What Happens Next?

The road to launching an investigation of alleged war crimes by Israel and Palestinians in Gaza Strip, the West Bank and East Jerusalem will be a long and complicated one, experts on international law have told Haaretz.

The question arose following an announcement by the International Criminal Court's chief prosecutor in The Hague that there is a basis for launching an investigation into such alleged crimes.

Prof. Yael Ronen of the Academic Center for Law and Science in Hod Hasharon said that first, the ICC must decide which areas the ICC has jurisdiction over, as has been requested by ICC Chief Prosecutor Fatou Bensouda. This decision could take several months. “On the matter of Myanmar, the decision was made within four months,” Ronen said. The investigation itself has no timetable, and some “situations,” as the ICC calls them, have been under investigation for years.

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“Then, during the investigation, the prosecutor has to investigate all the facts and relevant evidence to determine whether there is alleged criminal responsibility,” Ronen added. “For that, according to the court’s constitution, [Bensouda] may investigate in countries that are ICC members. This means that she might ask to come to Gaza, the West Bank and East Jerusalem and she would probably ask to collect evidence in Israel as well.”

The prosecutor has to investigate all claims, such as claims of self-defense or the information commanders had before they ordered an assault that resulted in civilian casualties, Ronen said: “If the prosecutor decided that there is enough evidence, then she would ask the court to issue a summons for suspects to appear in court either voluntarily or under arrest.” She added that such summonses can be made public or remain confidential. When a summons is published, a file for the suspect is opened.

Prosecutor Fatou Bensouda (L), and Deputy Prosecutor James Stewart (R), at the International Criminal Court (ICC) in The Hague, the Netherlands, January 25, 2019. Koen van Weel / AP

Nick Kaufman, an attorney with the ICC who has advised the governments of Gabon, Kenya and Myanmar under similar circumstances and was also a senior district attorney in the State Prosecutor’s Office in Jerusalem, said that in the coming days, a decision will be made to invite all interested parties, including Israel, to present their arguments regarding the chief prosecutor’s question about the court’s jurisdiction.