A number of Israeli NGOs (non-governmental organizations), including those funded by European governments and the New Israel Fund (NIF), have been actively encouraging and facilitating an International Criminal Court (ICC) investigation into Israeli officials.
This advocacy in the ICC’s lawfare framework coincides with long-term funder NIF’s unexplained removal of language from its website declaring a policy of “firmly oppos[ing] attempts to prosecute Israeli officials in foreign courts or apply the generally-accepted principle of universal jurisdiction against Israel or Israeli officials.”
ICC Prosecution and the Complementarity Criterion
On December 20, 2019, Prosecutor for the International Criminal Court (ICC) Fatou Bensouda announced her intention to launch a formal investigation into potential war crimes committed by Israelis in the West Bank, Gaza, and East Jerusalem. (Her petition to the ICC’s judges to rule on whether or not she has jurisdiction in these areas is pending. NGO Monitor, in partnership with three other groups, submitted an amicus brief to the Court, explaining why the ICC does not have jurisdiction over Israelis and why the Prosecutor’s claims in this regard are flawed.)
According to the legal principle of “complementarity,” the ICC is only authorized to investigate when a country’s judicial system has proven unwilling or incapable of prosecuting cases that fall within the ICC’s jurisdiction. Even if there is evidence of alleged war crimes, the Court is supposed to respect serious local investigations.
Distorting this principle and in order to justify ICC intervention, Israeli NGOs have conducted a concerted effort to discredit Israeli courts and investigations. These activities are funded by a number of European governments, as detailed below:
European government funding to B’Tselem for ICC-related advocacy
- In February 2019, Israeli media reported that the Netherlands provided B’Tselem with €176,000 to produce a report “on the role of the Israeli Supreme Court in the expulsion of Palestinian communities, particularly in the Jordan Valley, the Southern Hebron Hills, and the Ma’ale Adumim area.”
- A Dutch government document notes that “B’Tselem regularly refers to the Supreme Court as one of the main mechanisms that permits the ongoing occupation and human rights violations by granting judicial legitimacy to Israel’s policies.”
- In 2019, B’Tselem received NIS 87,000 from the Swedish government via a Swedish NGO, Diakonia, in order to “assess [Israeli] court rulings with respect to the violation of the human rights of Palestinians.” In addition, the NIF provided B’Tselem with approximately $1.4 million in 2015-2019.
B’Tselem ICC-related activity
In recent years, B’Tselem publications and public statements, including by Executive Director Hagai Elad, have repeatedly and explicitly called for ICC investigations and undermined the credibility of Israeli courts in an attempt to justify ICC intervention.
- In a March 2020 mass email (on file with NGO Monitor), B’Tselem demanded that “The ICC can – and must – investigate the situation in Palestine….Israel may finally have to start considering the price for its crimes against the Palestinians. We hope the court will make the right decision to back the Prosecutor’s position and rule: there is jurisdiction, and there will be an investigation.”
- B’Tselem also published a press release and position paper (March 12) that accused Israel of using the Holocaust to justify its policies vis-a-via the Palestinians, “the very values that the ICC is meant to safeguard – the values that the world has been trying to promote since the end of World War II, in response to the unspeakable atrocities committed during that dark chapter in history. With shameless cynicism, Israel is trying to use these very horrors to justify continued oppression, land grab and killings at its own hands.”
- In a January 2020 Ha’aretz op-ed, Elad alleged that Israeli legal system “works to ensure impunity for Israeli security forces who kill, abuse or torture them [Palestinians].” He concluded that “For Palestinians, quite literally, the International Criminal Court is their court of last resort.” (emphasis added)
- In July 2019, B’Tselem harshly criticized Israeli rules of engagement on the Gaza border during the violence that began in March 2018 and the Israeli Supreme Court’s decision to uphold them, declaring “Both the military and the Court bear the responsibility for this criminal policy.”
- In a February 2019 publication, B’Tselem contended that “the Supreme Court justices fail to discharge their duties, they also play a pivotal role in further cementing the occupation and settlement enterprise, and in further dispossessing Palestinians of their land… Therefore, they too – along with the prime minister, senior ministers, the chief of staff and other senior military officers – bear personal liability for the commission of such crimes.” (emphases added)
- A July 2015, B’Tselem statement about the 2014 Gaza conflict argued that “Israel’s contention that the ICC has no jurisdiction over alleged breaches of the laws of war, partly because ‘the Israeli judicial system is independent and can handle complaints on the matter of alleged war crimes’ is incorrect. Past experience shows that the opposite is true and that Israeli authorities have demonstrated that they are incapable of investigating allegations of Israeli breaches of humanitarian law in the Gaza Strip.” (emphasis added)
- This statement further claimed that “it is difficult to avoid the conclusion that the present investigations continue to serve as a façade intended to block international criticism.”
- Notably, in her brief on the question of jurisdiction, Bensouda cited three separate B’Tselem documents.
European government funding to Yesh Din for ICC-related activity
The Dutch government provided €170,000 to Yesh Din in 2018 (grant contract on file with NGO Monitor). According to the grant agreement, Yesh Din is expected to ensure that the “Issue of impunity of ISFP [Israeli security forces personnel] in cases of offences committed against Palestinians in the West Bank and in Jerusalem remains on international agenda and in discussions between GOI [Government of Israel] and foreign government representatives. Increased international awareness on systemic impact of law enforcement failure for Palestinian communities, forcible home entries and the human rights situation in the West Bank and in Jerusalem (emphases added).
Yesh Din has also obtained European government funding to bolster its narrative that Israel does not properly investigate wrongdoing. The EU provided €150,000 to a 2011-2013, €234,000 project Yesh Din undertook “To change Israeli policy vis-a-vis criminal accountability of Israeli Security Forces Personnel in the occupied Palestinian Territories, in such a way that acknowledges and takes into account the severity and the different nature of War Crimes, as distinguished from regular, domestic crimes” (emphasis added). From 2012-2018 Ireland provided the NGO with NIS 2.7 million for a series of projects, including those devoted to investigating Israeli law enforcement and the IDF.
Additionally, NIF provided approximately $550,000 to Yesh Din in 2015-2019.
Yesh Din ICC-related activities
Yesh Din’s activities are central to the allegation that Israeli investigative and court systems are unable or unwilling to investigate allegations of wrongdoing. This campaign is part of a wider “lawfare” strategy of pressing “war crimes” cases in the ICC, and uses faulty information and skewed statistics to promote the political claims.
- In a January 30, 2020 statement, Yesh Din alleged, “the State of Israel is unable or unwilling to take resolute action in keeping with its legal duties to eradicate violence and harm to Palestinians and their property…For this reason, we believe that the international community, which shares in the responsibility for protecting the rights of Palestinians living under occupation, has an obligation to intervene and take action.” (emphases added)
- In a December 25, 2019 statement, the group blasted Israeli Attorney-General Avihai Mandelblit for describing Israel as a law-abiding state in his memo outlining why the ICC has no jurisdiction over Israel.
- According to Yesh Din, “we do not know what figures he [Mandelblit] is basing that statement on, but the data we recently published present an entirely different picture.”
- The group added “The ‘principle of complementarity’ states that the International Criminal Court will not intervene as long as the country is willing and able to effectively investigate the crimes it has committed itself and to bring those responsible to justice…However, declaration cannot hide incontrovertible data.” (translation from Hebrew by NGO Monitor).
- In a December 22, 2019 interview, Yesh Din Legal Counsel Michael Sfard echoed these sentiments, stating, “no one in Israel will open an investigation against a soldier or officer carrying out this [rules of engagement on the Gaza border] policy,” and adding that “the systems that we have constructed don’t really investigate.” (emphasis added)
- Sfard concluded that “when a country choses to consistently behave in ways that are counter to the rules that human race has defined as red lines, and refuses to investigate and punish, it is the responsibility of the international community to do so.” (emphasis added)
- In November 2018, Yesh Din submitted a document to the UN Committee of Inquiry into rioting on the Israel-Gaza border, based partially on its own “March 2018 Data Sheet on law enforcement on soldiers suspected of harming Palestinians or their property.” According to this March 2018 publication, “Yesh Din’s conclusion is that today – as in the past, the military law enforcement system does not fulfill its obligation to provide protection to Palestinians against offenses committed by Israeli soldiers and commanders.”
- Reflecting these allegations, the UN Commission of Inquiry alleged that “Israeli soldiers committed violations of international human rights and humanitarian law… and may constitute war crimes or crimes against humanity.” This body created a “confidential file” of “which is recommended be given to the International Criminal Court (ICC)” and to be used by governments to “consider imposing individual sanctions, such as a travel ban or an assets freeze.”
- In March 2016, Yesh Din submitted a report to the UN’s Committee Against Torture, asserting “that Israel avoids creating an effective investigative mechanism which will be capable of conducting prompt and effective investigations into allegations of violations of war crimes, torture, cruel, inhuman or degrading treatment.”
- In a December 2, 2015 publication, Yesh Din claimed the existence of “deep, ongoing failure to conduct exhaustive investigations that lead to indictments” of IDF personnel. As a result, the NGO asserted that there exists “near impunity from prosecution for IDF soldiers.” (emphases added)
NIF provided approximately $420,000 to Adalah in 2015-2019.
Adalah ICC-related activity
- Adalah praised Fatou Bensouda’s December 20, 2019 announcement, expressing its intention to provide her with materials: “Adalah believes that, based upon the numerous reports of human rights organizations and United Nations commissions of inquiry over the years, the ICC prosecutor has made the right decision given the facts. No other decision could have been possible. We welcome her position, and we believe that the ICC has full jurisdiction to decide on the concerned criminal cases. Adalah, as an NGO with expertise in Israeli law that has submitted Israeli Supreme Court petitions and complaints relating to most of Israel’s military operations since 2002 in the Occupied Palestinian Territory, is prepared to submit its legal materials and opinions on these matters”. (emphasis added)
- In a December 27, 2019 statement by the International Federation for Human Rights (FIDH) – an umbrella organization of which both B’Tselem and Adalah are members – Adalah General Director Hassan Jabareen asserted, “The [Israeli] Attorney General could not prove that the Israeli judicial system meaningfully investigates and prosecutes those who are responsible for war crimes either.” The statement stresses, “Our organisations call on all States Parties and relevant stakeholders to cooperate with and support the Court in the exercise of its mandate in all situations, including in the situation in Palestine.” (emphasis added)
- FIDH concluded by noting, “Over the past five years, the ICC Office of the Prosecutor received an abundance of information, including from several of our organisations, on crimes committed in the situation and on factual and legal issues, including on the Court’s territorial jurisdiction in the situation. (emphasis added)
Breaking the Silence
NIF has provided Breaking the Silence approximately $1.4 million from 2015-2019.
- On its website, Breaking the Silence hints at the issue of “complementarity,” stating that the “investigation of low-ranking soldiers allows Israel to present a semblance of objective investigation mechanisms before international investigative bodies. With regard to international law, this could prove to be an obstacle in launching external investigations of Israeli actions. Low-ranking soldiers are thus being used as ‘human shields’ by policymakers facing international demands for external investigations.” (emphasis added)
- On May 13, 2015, the Israeli news site Ynet reported that ICC Prosecutor Bensouda expressed a desire to utilize Breaking the Silence publications: “Bensouda said her office was trying to get a copy of the [Breaking the Silence] report ‘to see how it can assist us in the preliminary examination phase’” in her review of the 2014 Gaza war.
- In a May 8, 2015 interview, Breaking the Silence’s Avner Gvaryahu explained, “our role is to publicize testimonies. If someone in Israel or abroad sees fit to use our materials, they are welcome to do so.”