Analysis

In Israel's Attempt to Deflect ICC Prosecutor's Call to Probe War Crimes, It Admitted to the Occupation

Gripped by panic at Fatou Bensouda’s statement that there’s reasonable basis to investigate it for war crimes, Israel claimed ‘there is either the occupation and no Palestinian state, or there’s a Palestinian state and no occupation’. By using this problematic argument, Israel gave the answer

Noa Landau
Noa Landau
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An Israeli soldier takes a picture of his comrades during a protest by Palestinians Qalandia checkpoint in the occupied West Bank, May 22, 2017.
An Israeli soldier takes a picture of his comrades during a protest by Palestinians at Qalandia checkpoint, West Bank, May 22, 2017.Credit: ABBAS MOMANI/AFP
Noa Landau
Noa Landau

In a contemporary take on the historic declaration "Um-Shmum" – a Hebrew expression of disdain for the United Nations attributed to David Ben-Gurion – Israel has been cooking up a follow-up that could be dubbed "Hague-Shmague." Hague-Shmague posits that the institutions of international law are no more than a redundant nuisance, biased and even anti-Semitic, and should have no clout over the lives of Israelis.

This derogatory thesis has been adopted by the State of Israel since its inception, even though it was international institutions that led to its founding. Such was the sentiment when Ben-Gurion suggested that Israel conquer the Gaza Strip and coined his dismissive idiom, and such is the sentiment today when Israelis hear that the prosecutor at the International Criminal Court at The Hague believes "there is reasonable basis" to open an investigation into war crimes in the Gaza Strip, West Bank and East Jerusalem. Oh well, many Israelis say, "Hague-Shmague." And what else would you expect from a world in which the institutions of international law have been defanged and the president of the United States himself flouts it almost as much as he tweets?

>> Read more: In Israel's attempt to deflect ICC prosecutor's call to probe war crimes, it admitted to the occupation | Analysis

Only the peculiar panic that suddenly gripped Israeli officials this Friday hinted at the fact that something unprecedented and salient did in fact happen.

In a hurried, last-minute briefing to the press, likely designed to preempt the ICC prosecutor's statement, the Deputy Attorney General for International Affairs and the Foreign Ministry's legal adviser laid down the attorney general's famous doctrine: The Hague has no authority to deliberate over the Israeli-Palestinian issue. It is not a plea of innocence, but an assertion that "they have no power here."

Intriguing. But some arguments were even more intriguing, chief among them the claim that "The Palestinians, by appealing to the court, seek to breach the established framework between the two parties and push the court to decide on political questions which should be settled in negotiations and not in criminal-judicial proceedings." 

Or as the Foreign Ministry's legal adviser told reporters: "This is the criminalization of the conflict which could only lead to more polarization between the parties, instead of a diplomatic process which brings them together."

A Palestinian youth stands amid the crater of a destroyed house following overnight Israeli missile strikes, southern Gaza Strip, November 14, 2019.
A Palestinian youth stands amid the crater of a destroyed house following overnight Israeli missile strikes, southern Gaza Strip, November 14, 2019.Credit: Adel Hana,AP

Of which imaginary diplomatic process do Israel's legal defenders speak? Where exactly is it taking place? It is Israel's long opposition to a diplomatic process (no less than the Palestinians') that led to the ICC to begin with. Left with few other options, international institutions are the only recourse Palestinians have to further their struggle for a state.

The rest of the attorney general's opinion and briefings that followed were no less contradictory. On the one hand, Israel claims it is "committed to the idea of international criminal justice since its inception," but in reality it has never joined the ICC's Rome Statute – arguing that the court may one day be "used" for "illegitimate political profit." As if there was ever an issue of human injustice that wasn't political at its core.

These were followed by the usual claims that Palestine isn't a sovereign state and therefore cannot join the statute or grant the ICC its criminal jurisdiction. Here, Israel also sought to point out the contradiction in the Palestinian narrative: It was explained that "There is either the occupation and no state – or there is a state and no occupation."

In other words, the Palestinians can’t simultaneously claim to be occupied by Israel and at the same time be a partner in a treaty of sovereign states. Yet doesn’t Israel pull the same trick by demanding that Palestinians take responsibility without allowing them full control? Has Israel itself decided whether Palestine is an occupied territory or a state? Or is it that by claiming Palestine is not a sovereign, Israel is admitting that it is, in fact, occupied?

Either way, Israel has ignored two central points in its response and in the political messages that followed (making it evident that whoever drafted them did not read the decision itself.) First, the prosecutor said that the investigation she wishes to launch also includes suspected war crimes by Hamas and other armed Palestinian factions, including suspected assault on civilians, use of human shields and torture. Second, the prosecutor has not launched the investigation yet and left it to the court to discuss the principle of one of the central questions in Israel’s own claims: Seeing that borders are not agreed upon by the two sides, on which exact "territory" may the ICC exercise its jurisdiction when it comes to the West Bank, East Jerusalem and Gaza? These points were absent from Israel’s automatic response that ridiculed The Hague, accusing it of “politicization” and “delegitimization.”

An Israeli soldier detains a Palestinian boy in Hebron, West Bank, November 29, 2019.
An Israeli soldier detains a Palestinian boy in Hebron, West Bank, November 29, 2019.Credit: MUSSA ISSA QAWASMA/ REUTERS

By passing the decision on the borders of jurisdiction to the judges, the prosecutor passed on the hot potato, but also dragged Israel into the legal debate it sought. Well, be careful what you wish for. 

In its legal response, Israel declared that “the lack of jurisdiction on the part of international tribunals in respect of any particular disputes does not relieve States of their duty to fulfil their international legal obligations." Furthermore, Israel said it is “willing and able to address any Palestinian grievance” through, among other means, “multi-layered review mechanisms already in place, and by direct bilateral negotiations.” It will be difficult to convince the prosecutor of such non-existent negotiations and independent monitoring systems.

The summary of Israel’s position ends with the declaration that “cynical attempts to manipulate the ICC into acting where its jurisdiction is manifestly lacking threaten to undermine not only the Court’s legitimacy and credibility, but also the prospects for achieving the just and lasting settlement long awaited by Israelis and Palestinians alike.” All one can say is that the expression “cynical attempts” is entirely apt. Perhaps it is time for Israel to first decide for itself – before trying to convince The Hague - whether it strives for annexation or negotiated concessions, and whether Palestinians are independent or occupied.