ICC arrests 101: Which Israelis will be arrested and when? – Analysis

The sky is falling! The International Criminal Court Prosecution will be arresting gazillions of IDF soldiers and Jewish settlers anywhere they travel in the world as of March 21! Watch out.Or calm down.Yes, there may be a threat of ICC arrests against Israelis, and even that theoretical possibility is serious business, requiring a full Israeli diplomatic and legal campaign. But in moving on that campaign, facts matter and quantifying the challenge correctly matters.The actual facts are that there is a 90% chance that zero Israelis will be arrested on March 21 (the day after the ICC Pre-trial Chamber is expected to approve a full war crimes investigation against Israelis), or even for some months beyond. Possibly most important to understand, when not blowing the threat out of proportion, is that zero IDF officials are likely to be arrested for at least 6-12 months after the March 20 hearing. Incidentally, even the March 20 hearing date is not set in stone and could be postponed by months.These delays are because ICC Prosecutor Bensouda exclusively told The Jerusalem Post on January 2 that March 20 has nothing to do with the IDF. She has not decided whether she can investigate the IDF yet as she has not decided whether the IDF’s own investigations of alleged war crimes by its soldiers comply with international law. If she later decides to investigate the IDF for war crimes, she told the Post that this would only occur after she has issued a later large public report on the issue.While Bensouda did not give the Post a timeline, the impression was that it could take her office another 6-12 months to issue a large report on such a heated and complex issue. A spokesman for the ICC reaffirmed on Tuesday that, “The notion that ICC will be issuing arrest warrants in connection with the situation in Palestine in March of this year is thus false.”Even in fall 2020 or March 2021, there may only be a very small number of IDF officials, such as Brig. Gen. Ofer Winter (whose name has been widely reported), who were involved in three major incidents during the 2014 Gaza War, who might have a problem. Anyone but a few top IDF officials from those three incidents: Black Friday at Rafah, the Shejaiya battle and the Khuza’a battle – will not be arrested for conduct from the 2014 Gaza war. This means that Benny Gantz is in no danger anytime in the next 6-12 months and may never be in danger. Theoretically, the ICC Prosecutor could go after him as the IDF overall commander, but the Israeli comptroller report on the 2014 war has made it clear that the Palestinians killed during Black Friday came by order of commanders on the frontline.More specifically, the comptroller report said that frontline commander Ofer Winter had an outdated Hannibal Protocol order permitting more aggressive use of force, than that which Gantz had. This meant that an administrative error had led to failing to update the order at the front. The IDF also issued an extensive report debunking a variety of myths about the Black Friday incident. This report framed the incident as an unexpected multi-front chaotic battle with Hamas which some Palestinian civilians got caught in the middle of.There is one other aspect to the ICC and IDF controversy: In March 2018, the IDF-Hamas-Gaza border crisis started. It is unclear what the ICC will do in relation to this, but IDF probes are still ongoing and likely will be until the end of Bensouda’s term in June 2021, or close to that point. This means Bensouda will not likely issue arrests in relation to these issues, or not until a much later date. Rather, most of the handling of the 2018-2019 conflict will likely be passed on to her successor. It is also possible that the issue may be dropped entirely since Hamas has announced it is significantly cutting back the weekly protests and the conflict does not fit easily into a standard law of war analysis.Israel’s bigger short-term ICC problem is not the IDF, but the settlements.Theoretically, arrests relating to the settlement enterprise could start much sooner because Bensouda has already found that Israel is not prosecuting the settlements as a crime. However, Bensouda told The Jerusalem Post on January 2 that she will not immediately issue arrests as she will need to conduct a fact-finding process after March 20 to determine which individuals to investigate. This will likely take a minimum of 3 months and could take 6 months or longer.As an ICC spokesman told the Post on Tuesday, “should an investigation be opened, investigations take time before a suspect is identified on the basis of the evidence gathered and an application for a warrant of arrest made.” Also, Bensouda may not rush to issue such arrests as she may need to issue arrests against Hamas and Gaza groups before or at the same time.Finally, there are allegations of torture and “pay for slay” against the Palestinian Authority. She may wait to issue arrests until deciding these allegations to avoid criticism that she is being biased in favor of the PA. So pushing the March 2020 date back to summer 2020 or the end of 2020, who might the ICC try to arrest in connection with the settlement enterprise?While possible, it is unlikely that an arrest would be issued for Prime Minister Benjamin Netanyahu. While he is responsible for overall policy and makes many pronouncements about the settlements, it is only one of many responsibilities he has. Other officials are far more central to the enterprise. Also, when Bensouda went after a head of state in the Kenya case, the entire case imploded due to a lack of state cooperation. Bensouda has said that her office learned from this experience.Experts say that arrests might be issued for the housing ministers from June 2014 onward and for local regional council chiefs in charge of West bank settlement expansion from June 2014 onward. Anyone before June 2014 – which means most officials who have been involved with the settlements – is beyond Bensouda’s jurisdiction based on time limitations set by “Palestine” in the Palestinian Authority’s own referral.A minority of experts think some defense ministers from June 2014 onward could be on the hook for actions taken to advance settlements, especially for house demolitions. But a majority say that since defense ministers are a side point to the settlement enterprise, they will not be investigated. Individual settlers will generally not be investigated as the ICC prioritizes higher profile persons.The tricky part is that the ICC will not announce when it issues these arrest warrants. So, just to play it safe, some of these officials may choose to cease traveling in certain areas already after March 20 absent pre-guarantees from those states that they will not be arrested. Around 125 countries are members of the ICC, including most of Europe. However, the US successfully cut bilateral deals with countries during the post 9/11 era to not arrest American troops.The truth is no one can really know who the ICC will try to arrest and no human being has ever been prosecuted in history for the “war crime” of building structures. However, the arrest list will be much shorter and is likely much farther off than many outlets are currently reporting.