Israel must defend its conduct of the war in court
Former Supreme Court Chief Justice Dorit Beinisch accused the Israeli government on Wednesday of weakening the independence of the judiciary to such an extent in 2023 that it would be much easier for the International Court of Justice and the International Criminal Court to prosecute Israelis for alleged war crimes.
According to Beinisch, who spoke at a Reichman University conference, it was the government’s ongoing judicial reforms, which include the removal of certain aspects of the power of judicial review, that have led international legal experts to have less respect for the idea that Israel’s legal system is independent and trustworthy and to conclude that Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant have allegedly committed war crimes.
Allegations of war crimes
Despite this pessimism, Beinisch believes that Israel could still withstand increased pressure from the International Criminal Court and perhaps the International Court of Justice if the government agrees to an independent investigation.
The reason for this is that the ICC and ICJ have so far been able to claim that no one in Israel is investigating the War Cabinet’s conduct of the war, ie that the investigations relate exclusively to Israeli soldiers.
As soon as Israel can present a serious investigation into the decisions of the War Cabinet, the ICC could lose its jurisdiction, since it is actually only supposed to investigate suspects in countries where those countries do not investigate their own citizens or politicians.
There is no such specific limitation on the ICJ’s jurisdiction, and the ICJ’s legal powers relate to general international law rather than specific criminal cases. However, if the ICJ were to investigate the War Cabinet as part of a state investigation, it could become more difficult, both politically and legally, for it to take action against Israel.
But Netanyahu continues to oppose such a government investigation, fearing that his ability to serve as prime minister would be compromised by a deep dive into his responsibility for failing to prevent the October 7 Hamas invasion.
Despite Beinisch’s claims, other leading experts believe that even without the legal re-trial, Israel might have found itself in the current predicament of war crimes allegations simply because of the sheer number of 37,000 Palestinians allegedly killed.
The unprecedented number of Palestinian civilians killed – even if the figure is lower and even if around 16,000 Hamas terrorists are subtracted – so dwarfs previous conflicts such as that of 2014, when around 1,000 Hamas fighters and 1,000 Palestinian civilians were killed, that Israel might have had to defend its conduct of the war in court in any scenario.
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