What does the ICC investigation mean for Israel?
The recent decision by the International Criminal Court (ICC) to allow an investigation into possible war crimes committed by Israel isn’t a surprise. But that doesn’t lessen its significance.
Last Friday, 5 February, the court’s pre-trial chamber ruled 2-1 that it had jurisdiction to open a criminal investigation into the 2014 Israel-Hamas conflict (Operation Protective Edge), Israeli settlement policy, and the Israeli response to protests at the Gaza border. There remains the possibility that other incidents could also be probed in future.
For many Israelis, this is yet further proof of the double standards under which they believe the court operates. The ICC has honed in on Jerusalem while ignoring human rights abusers in Iran, Syria, and China.
Palestinians have welcomed the move. Although the ICC will examine actions by both Israelis and Palestinians, including Hamas, the probe was launched at the request of the Palestinian Authority (PA), and is expected to focus overwhelmingly on Israeli actions.
The ICC doesn’t try countries, but rather individuals. This means that war crimes suits could be levelled against Prime Minister Benjamin Netanyahu and former Defence Minister Moshe Ya’alon, who held that post during the 2014 Gaza War.
Avigdor Lieberman, who was defence minister when the Great March began, could also be targeted, as could Defence Minister Benny Gantz and his predecessor, Naftali Bennett. This is in addition to individual Israeli soldiers and commanders.
Already in 2009, an arrest warrant was issued for Tzipi Livni on the grounds that she had been a member of the Israeli war cabinet that sanctioned the assault on Gaza, in which more than a thousand Palestinians were killed. In the end, Livni cancelled a trip to the United Kingdom (UK) and the threat of arrest kept her out of the country until authorities in 2011 granted automatic immunity to all Israeli officials visiting the UK.
But should Israeli (and/or Hamas) officials ultimately be convicted of war crimes by the ICC and senior officials named in such a verdict, they could be subject to international arrest warrants upon travel abroad.
However, for now at least, Jerusalem says it doesn’t anticipate any immediate threats to senior Israeli political or military figures. But that could change.
The court’s announcement also has implications at a state level. A negative ruling on Israeli actions in Gaza would ultimately raise questions about Jerusalem’s right to self-defence, and make it difficult for the Israeli army to operate against threats on the country’s southern border.
If the court also rules against settlements and Jewish building in east Jerusalem, this would undercut the country’s legal claims to historical and religious rights. Any Israeli activity in the West Bank would amount to a war crime.
Jerusalem has long argued that the ICC has no jurisdiction, and that Palestine isn’t a sovereign state. Although it was given the option to submit its position on the matter to the ICC, it declined. As such, Israel cannot appeal this ruling even if it wanted to.
Already back in 2016, Netanyahu appointed Avichai Mandelblit as attorney general because he believed he was the best person to defend Israel against future actions from the ICC. (Ironically today, the two are at loggerheads over Netanyahu’s corruption trial).
Responding to the ICC statement, Mandelblit said, “The principled legal position of the state of Israel, which is not a party to the ICC, is that the court lacks jurisdiction in relation to Israel and that any Palestinian actions with respect to the court are legally invalid.”
He noted that only sovereign states could delegate criminal jurisdiction to the court, claiming that the PA didn’t meet the criteria. He also argued that Israel had “valid legal claims” over the territory in question, and that the sides had agreed in the past “to resolve their dispute over the future status of this territory in the framework of negotiations”.
The ICC is meant to serve as a court of last resort when countries’ own judicial systems are unable or unwilling to investigate and prosecute war crimes. Until now, all attempts to prosecute Israel in the ICC have failed, not least because its courts are seen as independent and able to investigate any allegations of crimes in the territories on their own.
Israel’s military also has its own internal systems to probe alleged wrongdoing by its troops and in spite of criticism that the system is insufficient, experts say it has a good chance of fending off ICC investigations into its wartime practices.
But when it comes to settlement activity, which Israel considers to be legal, Jerusalem hasn’t held criminal investigations. Some experts say the country could have a difficult time contesting international law that forbids the transfer of a civilian population into occupied territory.
In practical terms, ICC Chief Prosecutor Fatou Bensouda hasn’t yet decided to launch her investigation into possible Israeli war crimes. She has only requested, and now received, authority from the court to do so. Her term as prosecutor is set to expire in June, and some Israeli officials are hopeful that her as of yet unelected successor could take a different path.
Still, meetings will be held in coming days to discuss strategy moving forward, including the possibility of a shift away from the current path of refusing to co-operate with the ICC.
Israel’s judicial establishment has been preparing for possible scenarios of ICC action for the past decade, and now fears that the country could be headed down a path that will lead to eventual ICC rulings against its politicians and military officials.
Former Israeli ambassadors to SA fight for the left
Three former Israeli ambassadors to South Africa have put their names and faces to an online campaign supporting left-wing Israeli political party Meretz.
Circulated via Facebook and on Twitter, the tag line reads, “We were ambassadors in South Africa. We won’t let it happen here too. That’s why we support Meretz.”
Meretz is one of 39 parties competing next month in the fourth parliamentary elections to be held in Israel in less than two years. The party is projected to win four out of 120 Knesset (parliament) seats. Members see themselves as political representatives of the Israeli peace movement.
While not explicitly saying “apartheid”, the word “it” in the campaign is understood to mean exactly that, according to Dr Alon Liel, the former head of the South African desk in the Israeli ministry of foreign affairs and ambassador to South Africa from 1992 to 1994.
“Only very recently did Meretz start using the term ‘apartheid’ as a means to differentiate itself from the Labour Party,” he said. “But I have always supported the term when applied to what’s happening in the West Bank where there are two legal systems. One applies to half a million Israeli settlers and the other applies to two-and-a-half million Palestinians who live on the same piece of land.”
Liel was appointed ambassador during the South African transition from apartheid to democracy. Labour party leader Yitzhak Rabin had just been elected prime minister for the second time, and Jerusalem’s foreign policy objected to apartheid and supported Israel normalising relations with the African National Congress (ANC) leadership.
“We were really, really worried that the new South Africa, controlled by the ANC, would break off diplomatic relations with Israel because of our very intimate relationship with apartheid South Africa,” Liel says.
“I was sent to save the relationship. Six days after I arrived, I met Mandela, even before I handed my credentials to [SA president FW] de Klerk. During that time, relations between our countries were not just normal, but good.”
Israel was secretly negotiating the Oslo Agreement with the Palestinians at the time, and the conversation was about exchanging land for peace and withdrawing from the West Bank. The official policy supported a two-state solution.
“South Africa had its turning point in 1994, when Mandela was appointed. We had our turning point when Israel officially dropped the two-state policy about 10 years ago and replaced it with annexation. Once this happened, I could no longer support the government. For me, annexation is the end of Zionism and democracy.”
While he’s used to being called a traitor, Liel insists he’s still a very loyal Israeli.
“Like apartheid South Africa and post-apartheid South Africa, it’s the same country. So, too, is Israel of Oslo and Israel of annexation the same country. But there was a U-turn in policy. I couldn’t be an ambassador for Israel today.”
Neither could Ilan Baruch who served a decade later, from 2005 to 2008, during Thabo Mbeki’s presidency.
“At the time, there was good reason to believe we could actually work out some reconciliation between South Africa and Israel as Mbeki was impressed with the bold steps taken by then Prime Minister Ariel Sharon in the context of disengagement,” said Baruch.
“I think post-apartheid South Africa was looking at our conflict from the point of view of conflict resolution, which wasn’t the case with Israel. Israel succeeded – unfortunately – in bringing the Palestinians to the brink of defeat. Had it been otherwise, had we seen international players apply pressure on the two parties to depart from their original positions and be prepared to take a different course, that would have given us a chance at peace making. But that was not the case. I don’t judge South Africa as the party that spoilt any opportunity for peace; I blame South Africa for not applying enough pressure on Israel to make peace an option.”
Baruch also blames Benjamin Netanyahu, who became Israeli prime minister for the second time in 2009 for moving the country further to the right. Two years later, he resigned from the government in protest against the political partnership between Netanyahu and Avigdor Lieberman, the leader of the right-wing Israel Our Home party. Since then he’s been active in civil society in opposition to the government.
A long-time Meretz supporter, Baruch admits that when he was ambassador to Pretoria, he was wrestling between his personal convictions and the desire to serve his country the best he could. That is, he says, “even if the prevailing positions of my government were pretty far away from my own”.
“I want to see Meretz succeed in these upcoming elections. I’m very proud to be supporting a political party that is strong on ideology,” he says.
Another former ambassador to South Africa, Arthur Lenk, who served from 2013 to 2017, is also relieved to no longer feel conflicted between his personal and public beliefs.
“After 25 years in which I needed to keep quiet about my opinions, I’m no longer at that point in my life,” he says.
But Lenk says he lent his name to the advert not to make a comment on South Africa or its politics, and certainly not on the Jewish community “who I lived with for four years and have the warmest feelings towards”.
“I think what’s clever about the campaign is its use of words and non-use of words – it leaves a lot open for an audience to read what she/he wants to. The nuance of the word ‘it’ isn’t unintentional. The word ‘apartheid’ isn’t used. The advert is in Hebrew for a domestic Israeli audience. My message is to the Israeli voter.”
Lenk left the Israeli government after returning from Pretoria, initially for a break. But later, he decided to go into the business of capacity building in part because of what he saw it could achieve in South Africa.
“I think in the upcoming Israeli election, very few of us are voting on the Israeli-Palestinian issue. One of the parties that is talking about peace and co-existence in the neighbourhood with the Palestinians is Meretz, and for that reason I support it and think it’s an important voice.”
Says South African-born veteran journalist and Israeli author, Benjamin Pogrund, “I’m surprised that two men who spent several years as ambassadors in South Africa learnt so little that they actually equate Israel with apartheid South Africa.”
The Israeli ministry of foreign affairs declined to comment.
Jerusalem empty and masked in silence
Walking down the alleyways of Jerusalem’s Old City, the Jewish, Muslim, Christian, and Armenian Quarters are so quiet, you can actually hear your own prayers.
You can almost hear the sounds of breathing from shop owners, some of whom have their doors open hoping for some desperately needed sales. Otherwise, many have shut their businesses because of COVID-19. Nobody knows when they will reopen for business.
At the Kotel, (Western Wall) the area in front of the wall that was once open and full of life is now a puzzle of blocked-off squares to allow a minyan of only 10 people to pray at a time.
Those praying are caged in, in the hope that their fellow worshippers will be wearing a mask. In and out they come, with someone shouting, “I need one more person to make the minyan!”
At the Al Aksa Mosque and the Church of the Holy Sepulchre, people are also praying, but without prayer blocks.
The usual vibrancy of Jerusalem has been subdued by masks and fear. There is hope that once the virus has been tamed, people will return to welcome the Sabbath, pilgrims will walk the Via Delarosa, remembering Jesus, and Muslims will return in their numbers for Friday prayers, bringing hope to the world.
And, once again, shop owners will be able to sell t-shirts saying, “I got stoned in Israel” and “Don’t worry America, Israel is behind you!”
Closer ties between Zim and Israel rattles ANC
Zimbabwe and Israel have had full diplomatic relations since 1993, but further overtures by our northern neighbour to the Jewish state could cause conflict with South Africa, particularly certain factions in the African National Congress (ANC).
According to an article by Carien du Plessis published on News24 on Wednesday, 3 February, “Zimbabwe has been seeking closer ties with Israel in the hope of securing more investment and doing away with sanctions. This move has caused unease within the ANC, which has a pro-Palestinian stance, although it’s unlikely the party will act on it.
“The ruling party [in Zimbabwe], ZANU-PF, has historically positioned itself as pro-Palestinian, but Zimbabwean President Emmerson Mnangagwa’s latest move closer to Israel represents a change in policy direction,” Du Plessis writes.
She reports that although the head of the ANC committee on international relations, Lindiwe Zulu, said that, “We cannot interfere with the sovereign decisions of the governing party of any other government”, there have been divisions within ZANU-PF and within the ANC about the Israel matter.
“A pro-Palestine lobby within the ANC wants South Africa’s governing party to take a more hardline approach to its Zimbabwean counterpart, while the pragmatists prefer not to push this issue for diplomatic reasons,” Du Plessis says.
Darren Bergman, the shadow minister for international relations and cooperation and a member of the Southern African Development Community (SADC) Parliamentary Forum Human Rights Committee, didn’t mince his words about South Africa’s response.
“The people of Zimbabwe are suffering. The internal affairs of Zimbabwe couldn’t get South Africa to act, the situation in Zimbabwe couldn’t get South Africa to act, but the relationship with Israel gets South Africa to act,” he said.
“This is a sinister situation that must make the SADC and African Union [AU] question what exactly South Africa’s situation is with regard to the Middle East,” Bergman said.
“It’s one thing to have an opinion and a position, but it’s another to keep a hard-pressed, almost spiteful stance at all times that can actually harm and injure the people and the continent. To this I would say that South Africa should show diplomatic constraint, and hold back.”
One of Mnangagwa’s recent moves to improve relations with Israel is the appointment last year of Israeli national Ronny Levi Musan as honorary consul of Zimbabwe to Israel.
The Afro-Middle East Centre reported in October 2020 that, “Musan has set plans into motion for Mnangagwa’s official visit to Israel. His activities in Zimbabwe include collaboration with Pentecostal churches to push for Christian support for Israel. Zimbabwe’s honorary consul is also pushing for Israeli businesses to invest in Zimbabwe’s agricultural sector, and he recently announced the intention to open an Israeli academy of agriculture in Zimbabwe. On the diplomatic front, Israel hopes that Mnangagwa will follow the example of his Malawian counterpart, Lazarus Chakwera, who announced plans to open an embassy in Jerusalem.”
Musan told the SA Jewish Report he had worked in Africa for the past 20 years to strengthen links between churches and the Holy Land. “About five years ago, I was invited to visit Zimbabwe which lasted about two weeks. I tried to do everything possible to connect Zimbabwe to Israel on a practical level. After the first visit, I visited Zimbabwe several more times, and met a number of ministers and church leaders, and just fell in love with the place.
“From there, it continued through my activities with the Israeli foreign ministry and the foreign ministry in Zimbabwe to promote diplomatic relations between the countries.” He was eventually appointed to this role.
“My main responsibility is to do everything possible in every field to bring knowledge and support from Israel to Zimbabwe, and vice versa. The main issue is technology in the field of agriculture, education, and innovation. These are the cornerstones that will return the crown to Zimbabwe as the ‘grain basket of Africa’.”
Local political analyst Daniel Silke says that Zimbabwe’s overtures to Israel “could well be an attempt by Zimbabwe to follow the Sudan example, in which currying favour with the United States via the channel of restoring relations with Israel allows the country to receive assistance and perhaps even escape some of the worst sanctions. But, of course, [former US] President Donald Trump is no longer in the White House. Whether this will have any traction with Joe Biden, who I think will be a lot more critical of the Zimbabwean regime, remains to be seen.”
In terms of the impact it could have on South African-Israel relations, Silke says, “Many other African countries are forging their own path in terms of relations with Israel. For President [Cyril] Ramaphosa, it’s a difficult balancing act given the demands from within his own party. But I don’t think South Africa has any leg to stand on in terms of interference with any country which wishes to forge some sort of close relationship with the Jewish state. As head of the AU, Ramaphosa is again in a tough position because of the changing dynamics across Africa, but I don’t think it’s an issue that will really get much attention.”
Rowan Polovin, the chairperson of the South African Zionist Federation, says, “We see this as a positive development, particularly for Southern Africa, which is part of the momentum that is being created by the Abraham Accords.
“Northern Africa has been very much part of the momentum. In the southern region, Malawi, which is diplomatically and geographically close to South Africa, has signalled its intention to open an embassy in Israel. If all this has an impact on South Africa’s neighbours, then South Africa will see the benefits. It’s very hard to ignore the importance of building ties with Israel, which has so many solutions for African issues, particularly water, electricity, agriculture, and security. Notwithstanding the noise that the ANC might make, ultimately it’s positive.”
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