These alleged war crimes already include Israel’s illegal Jewish settlements, the Israeli war on Gaza in 2014 and Israel’s targeting of unarmed civilian protesters during Gaza’s Great March of Return, starting in 2018.
Even more ideally, the Court could potentially widen the scope of the investigation, which is a major demand for the representatives of the Palestinian victims.
“We expect more crimes to be included: especially, apartheid as a crime against humanity and crimes against Palestinian prisoners by Israeli authorities, especially torture,” according to Dr. Mariniello.
In essence, this means that, even after the investigation is officially underway, the Palestine legal team can continue its advocacy to expand the scope of the investigation and to cover as much legal ground as possible.
Scenario 2: Narrow Scope of Investigation
However, judging from previous historic experiences, ideal scenarios in cases where Israel was investigated for war crimes rarely transpired. A less than ideal scenario would be for the scope of the investigation to remain narrow.
In a recent interview with former UN Special Rapporteur on the situation of human rights in Occupied Palestinian Territories, Professor Richard Falk, he told me that even if the narrow scope remains in effect – thus reducing the chances of all victims seeing justice – the investigation is still a “breakthrough”.
The reason why the investigation may not be broadened has less to do with justice and much to do with politics. “The scope of the investigation is something that is ill-defined, so it is a matter of political discretion,” Professor Falk said.
In other words, “the Court takes a position that needs to be cautious about delimiting its jurisdiction and, therefore, it tries to narrow the scope of what it is prepared to investigate.”
Professor Falk does not agree with that view but, according to the seasoned international law expert, “it does represent the fact that the ICC, like the UN itself, is subject to immense geopolitical pressure.”
Still, “it’s a breakthrough even to consider the investigation, let alone the indictment and the prosecution of either Israelis or Americans that was put on the agenda of the ICC, which led to a pushback by these governments.”
Scenario 3: Deferrals and Delays
While the two above scenarios are suitable for Palestinians, they are a non-starter as far as the Israeli government is concerned. While Israel remains largely silent about its counter-strategies, one of the options at its disposal is to face the fact and to cooperate with the Court, not for the sake of achieving major justice but to simply delay the process indefinitely.
Writing in the Israeli newspaper, Haaretz, international law expert Nick Kaufman advises Israel to cooperate, only for the sake of obtaining a “deferral” from the Court and to use the ensuing delay for political maneuvering.
“It would be unfortunate for Israel to miss the opportunity of deferral which could provide the ideal excuse for reinitiating peace talks with the Palestinians,” he wrote, warning that “if Israel squanders such an opportunity it should come as no surprise if, at a later date, the Court will hint that the government has no one but itself to blame for the export of the judicial process to The Hague.”
There are other scenarios and more are likely to arise as a result of backdoor dealings and intense discussions involving Israel and its benefactors, whether in Washington or among the amici curiae at the Court itself.
At the same time, while Palestinians remain cautious about the future of the investigation, hope is slowly rising that, this time around, things may be different and that Israeli war criminals will eventually be held accountable for their crimes. Time will tell.