Israel’s Point Man on the ICC

The Jerusalem Post published yesterday a lengthy profile of Israel’s Military Advocate-General, Sharon Afek. The article notes that Afek will have a key role in shaping Israel’s posture toward the International Criminal Court (ICC), which in 2015 opened a preliminary examination of the situation in Palestine.

Israel has wavered in its stance toward the ICC, at first suggesting it would rebuff the court entirely but then, last October, allowing an ICC delegation to meet with Israeli and Palestinian officials and academics in Jerusalem, Ramallah, and Tel Aviv.

In its most recent update on the status of its examination, the ICC prosecutor’s office indicated that alleged attacks on civilians in Gaza remain one area of focus for the prosecutor:

It is alleged that the IDF carried out numerous airstrikes on residential buildings, resulting in some cases in injuries and killings of residents and damage to, or destruction of, family homes and other residential buildings. Notable affected areas reportedly included, among others, the Shuja’iya neighbourhood, Khan Yunis, and Khuza’a. It is also alleged that during a ground operation in Khuza’a, in certain reported incidents, civilians came under fire while trying to leave the area, and others were subjected to serious ill-treatment while being detained by IDF forces. Additionally, between 1-4 August 2014, massive bombardment of the Rafah area by the IDF allegedly caused more than one hundred civilian casualties.

The Post article sheds some light on internal Israeli deliberations about how much information to release regarding its probes of IDF conduct in Gaza:

Where does Israel stand with the ICC over the broader 2014 Gaza war crimes allegations?

Though Israel has issued five detailed reports on cases it has closed, dozens of criminal investigations opened and a few indictments for theft, to date there is still not a single indictment for killing any of the 2,100 Palestinians (of whom around 50% [according to the IDF] or 70%-80% [according to NGOs] were civilians) whom the IDF killed during the war.

Moreover, two-and-a-half years after the war, Afek has not reached a decision on whether to open a criminal investigation in the Hannibal Protocol/“Black Friday” incidents, the “Shejaia Massacre” incidents and the Khuza incidents. These are the cases with the most Palestinian dead and which the ICC prosecutor has dubbed the key to its own probe.

Is Israeli delay on these cases unnecessarily risking a battle with the ICC?

The Jerusalem Post has previously exclusively reported that as early as June 2015, top Israeli legal officials were considering publishing at least partial decisions on some of these incidents.

That means that a conscious decision was made to wait and, it would seem, to hold all of the findings until everything is completed.

However, the article does not address what may be the most difficult issue for Israel: its policy of supporting settlements in the West Bank. Afek may ultimately be able to convince the ICC that Israel has fairly investigated its own conduct in Gaza, but making that case regarding settlements will be almost impossible. Settlements policy is, of course, well above Afek’s pay grade, and that’s part of what makes it so legally dangerous for Israel.