Experts say the investigation into alleged British war crimes in Iraq could be crucial after the International Criminal Court chose to look at allegations against Israel.
It follows a 2-1 decision on Friday by the ICC’s three-member Pre-Trial Chamber that the court does have jurisdiction over possible crimes committed in the West Bank, Gaza, and East Jerusalem.
It now plans to investigate Israeli settlement building, the 2014 military incursion into the Gaza Strip (Operating Protective Edge), and the shooting of weekly ‘Great March of Return’ protesters at the Gaza border from March 2018.
Ever since ICC chief prosecutor Fatou Bensouda determined that the court should investigate in December 2019, lawyers on all sides have been arguing over whether Palestine – as a non-state actor – is a party to the Rome Statute.
Both the United States and Israel had argued vigorously against this, to no avail, and Israel’s cabinet this week hit out at the “scandalous” decision to investigate, but Prof. Yuval Shani of the Israel Democracy Institute said an ICC decision less than two months regarding British soldiers in Iraq may still give cause to pause.
“We still have a lot of time before any investigations ripen into indictments against specific individuals and arrest warrants,” he said.
“The prosecution in The Hague will have to formulate a position before then on the question of whether the IDF’s investigations are sufficient to prevent soldiers from being prosecuted.
“In a similar issue, pertaining to allegations as if British soldiers had committed war crimes in Iraq [in particular relating to the treatment of detainees], the court recently set very low standards for adequate investigation.”
He said this was “something that increases the chances that the military investigations regarding Operation Protective Edge will block legal proceedings against IDF soldiers in connection to that operation”.
Writing in Yedioth Ahronot, Ben-Dror Yemini said: “Exactly two months ago, Bensouda decided that Britain had committed war crimes in Iraq in 2003-2009. The decision, 184 pages long, details the alleged crimes.
“But the bottom line is that there will be no investigation because it was not proven that Britain had given the perpetrators immunity. This is interesting because the law enforcement mechanisms in Britain are excessively lenient toward the criminals.
“For example, the indictment against a group of soldiers for abusing prisoners, which caused the death of one of them, ended with 12 months’ imprisonment for only one soldier. But European countries fund organisations in Israel that collect dubious ‘testimony’ about war crimes committed by Israeli soldiers.”
The UK Government, which is currently chairing the UN Security Council, has not yet issued a comment on the ICC ruling, but Middle East Minister James Cleverly did issue criticism of Israel’s demolition of Palestinian shelters in Humsa al-Barqai, paid for in part by UK aid.
Bensouda, who has said she will also be investigating Palestinian armed groups, can now begin legal proceedings that could lead to criminal charges and international arrest warrants against senior Israeli political and security officials.
However, she completes her nine-year term in June, and given that any investigation is slated to take 18 months, much will depend on her successor.
In the UK, Zionist Federation chair Paul Charney said the decision was “clearly politically driven and will serve no other purpose than to drive both sides even further apart”.
The Board of Deputies meanwhile suggested that the court was applying different standards, tweeting that the ICC “dodged investigating China over claims of actual genocide against the Uyghurs, yet we see this”.
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