Next ICC prosecutor will hopefully just drop the case against Israel, says a Biden ally

The Biden administration is hoping that the next International Criminal Court prosecutor will simply drop the case against Israel when he comes on board in June, because this is “not something that really needs to be pursued.” That is the indication from Dan Shapiro, the former Obama ambassador to Israel who spoke for Biden during the campaign last year.

In the same commentary, Shapiro, who lives in Tel Aviv, said that Israel can’t be investigated by the ICC because it has done such a bangup job of investigating itself.

Shapiro was asked by Jon Allen, the former ambassador of Canada to Israel, (during an Israel Policy Forum call last week): “Why do you and the U.S. oppose the decision of the ICC. Do you agree with Netanyahu that it’s antisemitism at heart?”

Shapiro dismissed the ICC out of hand.

“Well, of course in the first instance the ICC has no jurisdiction [Israel not being a signatory to Rome statute]… And it’s very clear that the ICC does not have jurisdiction to conduct these investigations, unless they’re of member states or it’s authorized by the U.N. Security Council. So that’s an overstepping of the bounds of ICC jurisdiction.

“The other reason that an ICC investigation can be authorized or defended is if the state in question does not have a credible means and judicial process to do its own investigations and look into its own conduct. That does not in my judgment fairly describe Israel, which has a long record of conducting investigations of actions of its own military. Obviously everyone doesn’t agree with the outcome of every one of these investigations. But it’s quite professional. I know it well, from cases that were looked into when I was ambassador. It is quite serious. And I certainly think it meets the standards that don’t require an external investigator.

The claim that “Israel… has a long record of conducting investigations of actions of its own military” is pure propaganda for Israel, from our former ambassador, who works for an Israeli security thinktank and is a reliable mouthpiece for Israel’s line. Any human rights organization would laugh at this.

Shapiro went on to say that the investigation has “an agenda” because its time window is events “since June 13, 2014.”

The day before Hamas terrorists abducted three Israeli teenagers. The event that actually was the triggering event for all of the terrible and violent events of that summer, wasn’t even defined into the mandate of this investigation.

There are other reasons to suspect that there are other agendas at work here.

Then he said the next prosecutor, Karim Khan, should just drop it.

So this is going to be the U.S. position. And hopefully as the new prosecutor comes into office– he comes in in June I believe– he can decide together with perhaps his outgoing predecessor and other professionals in the system, that this is not something that really needs to be pursued. It’s still in a very preliminary phase and doesn’t have to be taken to its full extent. 

I asked former Ambassador Jon Allen if he had any comment on the exchange, and he wrote back:

Dan did not respond to my question re Bibi’s characterization of the ICC’s decision as anti-Semitic. This is classic Bibi and I’m glad neither Dan nor the State Dept has gone down that route. 
Second, he did not address the element of the [ICC] investigation related to the Occupation, i.e., settlement expansion, the illegal outposts, the destruction of Palestinian homes, the ongoing violence by settlers against Palestinians which is generally not dealt with at all, never mind not properly investigated, tried and possibly punished. As Dan stated, the ICC can assume jurisdiction over a country which is unable or unwilling to investigate and prosecute possible crimes. My sense is that that description could well apply to both the treatment of the Palestinians by the settlers and, more importantly, the failure of the IDF to prosecute and or convict its own soldiers for the violence, including injuries and deaths, against Palestinians, including children, in the West Bank. 

Israeli human rights attorney Michael Sfard has also stated this view (speaking to Americans for Peace Now). The ICC will have no choice but to pursue the prosecution of settlements, because Israel has never investigated settlements and regards them as perfectly legit; but they violate the Geneva conventions and the ICC has said they are cause for investigation. And to drop the case would signify complete favoritism to western-allied countries, destroying the ICC’s credibility.

The claim that Israel does good investigations is belied by all evidence. Human Rights Watch declared there was no accountability for Israel or Hamas in the 2008-2009 Gaza onslaught, which was under Shapiro’s watch. In that conflict, more than 1200 Palestinians were killed– and an Israeli soldier was convicted of credit card fraud, using a Palestinian’s stolen card.

Also on Shapiro’s watch was the point-blank murder of an incapacitated Palestinian by an Israeli soldier in occupied territory in 2016. The case was documented on video by a Palestinian; so Israel had to do something. The soldier served 9 months in prison and was freed to a hero’s welcome.

Haaretz reported last year on the pattern:

Almost every time Israeli soldiers kill a Palestinian in the territories, the army announces the opening of an investigation by the Military Police. But a look back at incidents reported here over the past year reveals that such inquiries rarely conclude – if they ever began.”

Jon Allen, who was ambassador from 2006-2010, also remarks on Shapiro’s claim that Israel does good investigations.

I cannot comment specifically on what Israeli soldiers did and did not do in the 2014 Gaza war, but we have heard testimonies from a number of soldiers who fought in Gaza at the time that suggest that the actions of some soldiers and perhaps even their orders did not live up to Bibi’s description of the IDF as “the most human army in the world”. You will recall that some 2200 Palestinians, including many women and children, were killed in that war. I understand the comparable numbers were 66 Israeli soldiers and 7 civilians. I realize that Gaza is an extremely difficult area in which to fight a war. I am aware that one doesn’t just compare numbers killed and injured when discussing whether a military’s actions are proportionate or not. I do, however, question whether the IDF can be trusted to investigate, prosecute, and convict its soldiers of alleged war crimes etc. I frankly would say the same for the U.S. and the Canadian military. Their track records, much like the track records of the police in US cities being convicted of killing black and white civilians, is not impressive.

And Allen notes the U.S. position:

Finally, we should recall that the U.S. itself refused to join the ICC. I was on the Canadian delegation in the early negotiations of the treaty, and it quickly became clear that the only way the U.S. would sign on was if the UN Security Council had the power to veto a prosecution. In other words, the U.S. was not prepared to have its soldiers be subject to an ICC prosecution. I can understand why, therefore, their position would be similar when it comes to Israel. 

Canada is a signatory to the Rome statute establishing the ICC.