Israelis React to the Possibility of an International Criminal Court Investigation

  • Middle East Policy

    Middle East Policy has been one of the world’s most cited publications on the region since its inception in 1982, and our Breaking Analysis series makes high-quality, diverse analysis available to a broader audience.

Views from the Region

February 16, 2021

The International Criminal Court (ICC) ruled earlier this month that the ICC prosecutor may open an investigation into possible war crimes committed in the Occupied Territories since 2014. Unlike the International Court of Justice, the ICC is treaty-based, with 123 member states that can under certain conditions also exercise jurisdiction over individuals of non-member states. The ruling has been heavily criticized in Israel, where many fear that it will be used for initiating politically motivated investigations against Israeli government officials and military personnel. Some have suggested that, instead of refusing to acknowledge and make efforts to delegitimize the Court, the Israeli government should find ways to anticipate and prepare for the likely investigations deriving from Israeli actions in the West Bank and Gaza.

One of the most forceful responses to the news of the ruling came from Caroline Glick, who in an op-ed for Arutz Sheva agreed with the Israeli government’s characterization of the ruling as “anti-Semitic,” adding that she held European governments and various NGOs accountable for a decision that in her view was “bigoted at its core…. Without the actions of European governments like Germany, Holland, Switzerland, France, Norway, Britain and Sweden, and without the European Union as a whole—the ICC would never have opened its bigoted proceedings against Israel, the purpose of which is to reject Israel’s right to exist. At every point, the Europeans had the power to prevent or end the ICC’s bigoted treatment of the Jewish state. And at every point, the Europeans took active steps to ensure that the targeting would continue. Indeed, by funding and directing the efforts of the likes of NGOs Breaking the Silence and Al-Dameer (which is affiliated with the Popular Front for the Liberation of Palestine terror group), the Europeans were the puppet masters directing the passion play…. In a way, the ICC’s effort to harm the Jewish state is a modern-day version of the Dreyfus trial.”

The Jerusalem Post editorial is equally critical of the Court’s decision. However, it calls on the Israeli government to take the Court seriously and push back against it by building alliances and bringing forward strong legal arguments: “The International Criminal Court at The Hague made a terrible decision on Friday in announcing that it had legal justification to open a war crimes investigation against Israel…. What makes the court’s decision ridiculous is that it puts Israel on equal footing with terrorist groups like Hamas and Islamic Jihad…. Israel will need to fight this decision and take steps to protect its soldiers, officers and members of government who could be associated with the settlement enterprise. It will need to work closely with the United States and allies in Europe to alienate the court and show that its ridiculous ruling will not prevail. Israel will need to make legal arguments – about jurisdiction and the definition of war crimes – but countries around the world need to know that what starts with Israel usually doesn’t stop here. It will continue.”

That approach is supported by Israeli academic Daphné Richemond-Barak at the Lauder School of Government, who, also writing for the Jerusalem Post, proposes a sustainable, long-term national strategy for engagement with international institutions paired with “a robust legal strategy…. It’s unclear what channels of communication exist between states – especially non-party states like Israel – and a prosecutor regarding the scope of an investigation, but I see great value in maintaining dialogue. Regretfully, decision-makers in Israel do not necessarily share this view, for reasons that range from sheer fatalism to the fear of conferring too much legitimacy on politicized international institutions. However, it is always preferable for Israel to lay down its narrative and arguments, directly or indirectly, and make its case…. Dealing with problems as they come is not enough – it is time to ask the hard questions: Where does Israel see itself in the legal arena in five or 10 years? What are the objectives and how does it get there?”

Others have expressed dismay at official reactions following the rulings. For example, a former member and Deputy Speaker of the Knesset, Naomi Chazan, dryly notes on her Times of Israel blogpost that the surest way to prevent ICC involvement in Israel’s affairs is by avoiding pursuing policies and actions that run counter to international criminal law: “Israeli reactions to the International Criminal Court’s decision to proceed with the investigation of possible Israelis war crimes against the Palestinians have ranged from genuine astonishment to complete outrage, as if the ICC’s ruling came out of the blue…. Disagreements over the jurisdiction of the Court notwithstanding, Israel’s response to the latest developments has been not only sanctimonious, but also profoundly self-defeating…. the best way for Israel to safeguard itself from constant external calumny is to desist from policies that contravene basic humanitarian values. This applies not only to specific actions in times of violent confrontation, but also, significantly, to ending the occupation, which denies the Palestinians the fundamental freedoms upon which Israel was constructed.”

Meanwhile, writing for Haaretz, Anshel Pfeffer draws attention to the fact that, even though the wheels of justice may be slow, the Court ruling is likely to have an immediate impact on the calculations of Israeli officials, including any decision to go forward with settlement construction plans in the Occupied Territories: “Over the past few years, the fear of a sudden arrest of an Israeli general for war crimes has subsided somewhat, until Friday’s ruling by the pre-trial chamber of the International Criminal Court in The Hague, that the ICC has jurisdiction over the West Bank, East Jerusalem and Gaza. The court’s decision means that investigations against Israelis (and Palestinians) for alleged war crimes committed in the territories can now proceed…. Even if the arrest warrants are not issued in the next few years, Friday’s ruling will have a chilling effect on the highest echelons of Israel’s leadership.”

Of course, by extending its jurisdiction over the Occupied Territories, the Court will most likely also take a hard look at the action of not only Israeli officials, but especially of Hamas fighters and political leaders. In fact, some, including Israel Hayom’s Pinhas Inbari, have suggested that one clear loser from this month’s ruling was Hamas, which has led Inbari to speculate that “The court’s ruling that it may investigate Israel for war crimes also allows it to investigate Hamas, potentially throwing a wrench into the developing Hamas-Fatah partnership…. [T]he International Criminal Court’s decision that the court may investigate Israel for war crimes also allows it to investigate Hamas for war crimes. This came as a surprise to Hamas, which has demanded that the PLO somehow remove this part of the ruling, though it is unclear how the PLO would do that…. Hamas will wait to see what happens in The Hague. If the tribunal decides to launch an investigation, a violent confrontation in the West Bank between Fatah and Hamas could break out. Fatah would fear that a partnership with Hamas could hurt its legitimacy.”

Leaving such concerns and considerations aside for the moment, the general consensus is that, if there is a winner emerging from the Court’s ruling, it is the Palestinian cause, which according to an op-ed by Shimrit Meir for Yedioth Ahronoth, has once again been placed on the “global agenda…. Even if the legal road is long, the decision by the Hague puts the Palestinian issue back on the international agenda and at the forefront of Israeli discourse after years of marginalization…. The Palestinians, after four years of being schooled by Donald Trump and a year of having their Arab brethren turn their backs, understand that the wind is blowing in a new direction and that they must take advantage of the moment, just as Israel has taken advantage of the past four years. Unlike in the past, the Palestinians are no longer waiting for the outcome of Israel’s upcoming elections. And not just because they are exhausted. They are conducting a dialogue with Israel only at the micro level, just the bare minimum to keep afloat. Instead, they have moved the conversation about the future of the conflict back onto the world stage.”

  • Middle East Policy

    Middle East Policy has been one of the world’s most cited publications on the region since its inception in 1982, and our Breaking Analysis series makes high-quality, diverse analysis available to a broader audience.

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