Hard Questions, Tough Answers: Jerusalem, The Hague, Warsaw (February 15, 2021)


Yossi Alpher is an independent security analyst. He is the former director of the Jaffee Center for Strategic Studies at Tel Aviv University, a former senior official with the Mossad, and a former IDF intelligence officer. Views and positions expressed here are those of the writer, and do not necessarily represent APN's views and policy positions.

Jerusalem, The Hague, Warsaw: three trials


Q. Prime Minister Netanyahu’s trial on corruption charges began last week. Is it likely to affect his election chances?

A. No, because the actual presentation of evidence and interrogation of witnesses are not likely to take place before the March 23 election date. February 15 and March 1 have been set aside by Netanyahu’s three judges for preliminary presentation of evidence in the three corruption cases, but nothing further. So the public will not be exposed to courtroom dramas that might change voters’ minds in one direction or another.

Besides, most Netanyahu voters are convinced he is innocent and is being framed by traitorous legal officials. Nothing is likely to change their minds.

On the other hand, the very fact that the trial is proceeding confounds the prediction of many skeptics who were certain Netanyahu would somehow succeed in thwarting the legal procedure before it even commenced. And because the evidentiary phase will take place during the post-election coalition-forming period (which will be prolonged by holidays: Passover, Independence Day, etc.), the trial could end up influencing the composition of the next government.

Then too, even if the Netanyahu camp wins 61 or more mandates, the deeper into the trial we are the more difficult it might be for a post-election Netanyahu-led coalition to legislate Netanyahu’s way out of the legal proceedings--by, say, prohibiting criminal charges against a sitting prime minister. Any attempt in that direction will undoubtedly end up on the docket of the High Court of Justice, which will be less likely to accept the constitutionality of cancelling an ongoing trial and legislating retroactively, particularly on legal matters.


Q. The International Criminal Court in The Hague just issued a decision that it has jurisdiction in the West Bank, Gaza Strip and East Jerusalem. The decision was handed down in response to an appeal by Chief Prosecutor Fatou Bensouda, who wants to investigate suspected war crimes in those territories that were allegedly perpetrated since 2014 by Israel and Hamas. What are the implications for Israel?

A. The war crimes in question could involve the most recent round of heavy IDF-Hamas fighting in and around the Gaza Strip in the course of Operation Protective Edge in July-August 2014. They could in theory also concern Israeli settlements in the West Bank and even Jewish neighborhoods in East Jerusalem.

Israel is not a member of the ICC. The Palestinian Authority is, because the ICC has recognized it as a “state”, a position rejected not only by Israel but by the United States, Canada, Australia, Russia, Greece and others. Israel has begun lobbying these countries as well as ICC member states like Germany that agree with Israel’s position, with the objective of pressuring the ICC to revoke its decision.

Bensouda, who is from The Gambia, leaves office in June. Her successor, Britain’s Karim Khan, could conceivably have a different point of view. Nor is it clear precisely how Bensouda intends to investigate: Israel can refuse to cooperate with the court and Hamas is not an ICC member. Further, under ICC rules, Israel can avoid ICC investigation of acts committed in the summer of 2014 by proving that its own judicial bodies have carried out or intend to carry out their own investigation. Hamas, on the other hand, has never ‘investigated’ its own deliberate firing of rockets at Israeli civilians. That this is a war crime can easily be proved, but to do so might require Israeli cooperation with the ICC chief prosecutor--a problematic precedent for Israel. 

Then there is the issue of the settlements. They are clearly illegal under international law, which prohibits the transference of civilians by an occupier to occupied territory that is under “belligerent occupation” (not only since 2014, but since 1967). Only Israeli courts have deemed the territories not exactly occupied and the settlements legal. So Israel cannot claim in its defense that it is investigating illegal settlement activity.

ICC proceedings are long, drawn-out affairs. Ultimately, if the ICC rules against Israel regarding war crimes in Gaza or West Bank settlement activity, it would focus on both senior IDF officers and Israeli political leaders who were involved in the relevant decision-making. Warrants for their arrest could be issued for ICC member states to prosecute. In the worst case, these Israelis--meaning a large number of senior security and political officials--would be advised to avoid travel to any country likely to seek to enforce ICC decisions.

Note here, by the way, the possible complicating effect of the intention voiced recently by IDF Chief of Staff Aviv Kochavi. As explained in our Q & A from two weeks ago, Kochavi advocates allowing the IDF more latitude in terms of international law in attacking the many Hamas and Hezbollah targets that are deliberately embedded in civilian population concentrations. Kochavi’s statement can be interpreted to reflect recognition that IDF counter-attacks against Hamas in Gaza in 2014 ended up killing too many Palestinian civilians.

In the event that Bensouda’s successor decides to proceed and the ICC itself is not persuaded to cancel its decision, Israel’s military justice institutions may at some point in the process succeed in persuading the court that they have investigated or will investigate alleged war crimes dating to the summer of 2014 in Gaza. But an ICC investigation of settlement illegality is another issue altogether, for the simple reason that the entire world indeed considers the settlements to be illegal. 

Worse, since 2014 the Netanyahu government has encouraged the establishment of settler ‘farms’ on disputed land in West Bank Area C, the 60 percent of the territory that ostensibly is not part of Palestinian autonomy. Recently, too, the Jewish National Fund – Keren Kayemet Le’Israel moved to authorize purchase of land in the West Bank from private Palestinian owners, for the purpose of settlement expansion.

From the ICC’s standpoint, all this settlement expansion in occupied territory constitutes a ‘perfect storm’ of illegality against which Israel has no obvious defense. Non-Israelis serving on the JNF’s board should also be forewarned about those ICC international arrest warrants.

Should any sort of Israeli-Palestinian peace process be underway at the time of such an ICC investigation, Israel could argue that proceeding with a Palestinian complaint to the ICC regarding settlement status is detrimental to that process. The Palestinians cannot have it both ways: negotiating with Israel over the territory and prosecuting Israel regarding the territory.

Needless to say, the Netanyahu government is not involved in negotiations with the Palestinians. Any successor coalition is likely to be heavily right-wing. Accordingly, an ICC inclination to proceed with an investigation against Israel regarding settlements might conceivably have the beneficial effect of motivating a reluctant Israel to renew the Israel-PLO peace process--if only to sideline the international court. Here Israel’s newly ‘normalized’ friends in the Arab world, the UAE and Morocco, could be helpful in arranging renewed negotiations. So could the Biden administration.

Meanwhile, the results of both Israel’s March 23 elections and the Palestinians’ May and July elections (if indeed they are held) could prove very relevant. Already in Israel the ICC’s decision is an election issue. Last week PM Netanyahu, ever the demagogue, appealed to ultra-nationalist voters in stating, "when the ICC investigates Israel for fake war crimes, this is pure anti-Semitism.”


Q. Lastly, Warsaw. What trial in Poland is relevant here?

A. Last week two distinguished Polish historians lost a libel suit in Poland. They had leveled claims in a book that a Polish WWII mayor had collaborated with the Germans. The mayor’s niece sued them for defaming him, and won a minor settlement. 

The details are not the main issue here; conceivably the historians actually erred to one extent or another. They plan to slightly revise their text.

Rather, the central issue is that the Polish ultra-nationalist right saw the trial as a ‘flagship lawsuit’ and hopes to leverage it to fuel its argument that Holocaust historians in general maliciously vilify Poland’s WWII conduct. While in 2018 Poland rescinded the more severe sections of its ‘Holocaust law’ that criminalized any claim that Poland was involved in Nazi crimes, it still permits civil suits like this one. And “damaging the good name” of Poland can still draw up to three years in prison.

Poland’s dominant ultra-nationalists are determined to portray Poles in WWII as exclusively fighting the Nazis and saving Jews. In fact, as any Polish Jewish Holocaust survivor can testify, plenty of Poles (not all, by any means) either collaborated with the Nazis or turned the other way when confronting Nazi atrocities. So this relatively minor libel trial took on major significance for Poles and Jews, including of course many Holocaust survivors and scholars in Israel.

How far will the Poles go to erase Holocaust involvement from their history? My own experience is telling. About ten years ago I was invited by a Polish think tank to a Middle East seminar in Warsaw. At one point I found myself in a discussion in which, apropos Israeli warnings that Iran’s leaders constantly threaten to destroy Israel, an Algerian participant stated categorically that Iran will do no such thing, that genocide is a thing of the past, and that Israelis should not worry.

“This is a very sensitive issue in Israel,” I replied. “We have a right to take seriously Iranian and other threats to wipe Israel off the map. This issue is for us very much alive. After all, here on Polish soil, in my lifetime, millions of Jews were exterminated.”

None of the Poles in the room commented. The discussion moved on. A few weeks later I received the text of my seminar remarks, for my approval prior to publication by the Warsaw think tank. My response to the Algerian was nowhere to be found. I restored it to its rightful place in the text and sent the text back to Warsaw. When, a month later, the seminar transcript was published, my response was again missing.

Why would Polish academics censor a statement of fact that did not implement a single Pole in the Holocaust, only “Polish soil”? The charitable explanation is that they merely wanted to protect me from being sued for “damaging the good name” of Poland.