When it comes to the International Criminal Court in The Hague, the Israeli government is convinced that denial is just a river in Egypt. Otherwise, there’s no explanation for what seems to be Israel’s spectacularly conspicuous absence of preparation and policy ahead of the launch of the ICC probe into alleged Israeli war crimes in 2014 and 2018 in Gaza.
Some staff work is being done at the Foreign Ministry, the Defense Ministry and the National Security Council, but it appears there is no coherent multiagency effort. In short, Israel has yet to form a policy and will soon face an unpleasant investigation ill-prepared, ill-equipped and very short on defense arguments against what may be a harsh and vicious prosecution.
All this deserves a cautious disclaimer: We may be pleasantly surprised that Israel is very quietly preparing a comprehensive defense, both legal and diplomatic, that would happily render this article uncalled for.
After securing the court’s chamber pretrial decision that authorizes the (already ongoing but limited) investigation, and that assures Chief Prosecutor Fatou Bensouda that the ICC has jurisdiction over the Palestinian territories, Bensouda issued a letter to all concerned parties on March 9. The letter gave Israel (and the Palestinians) 30 days in which it could delay the process by proving that it intends to thoroughly investigate the issue itself.
Ostensibly, this has been Israel’s basic argument whenever such investigations are initiated: We have investigated and we will investigate ourselves. We have a strong, high-quality, pressure-immune judiciary that enables us to examine every wrongdoing.
The exact opposite of the argument that Prime Minister Benjamin Netanyahu is making domestically – about a strong judiciary being a central part of a malicious “deep state” out to get him – he’s using as a force multiplier abroad.
In fact, self-investigation is the core of Israel’s opposition to both the authority and practices of any international tribunal, court, investigative commission or other mechanism: It’s inherently biased, subject to political motives and pressures, and crudely infringes on national sovereignty. Israel is capable, willing and ready to investigate itself through impartial courts meticulously following strict legal principles, guidelines and procedures.
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But in the last three weeks, nothing of any significance has happened. Israel has been mired in an election and post-election coalition meanderings without a justice minister due to peculiarly Israeli political wrangling, without a permanent state prosecutor and without regularly held cabinet meetings.
By April 9, the 30 days will expire and Israel will be subject to the investigation, focusing on the 2014 Gaza war and the "March of Return" protests along the Gaza border in 2018. And the probe could be expanded to the entire settlement enterprise in the West Bank depending on the decision in June by Karim Khan, Bensouda’s replacement as chief prosecutor.
Israel isn’t a party to the Rome Statute that established the ICC in 1998, so it couldn’t appeal the decision to investigate. Officially signing the statute in December 2000, Israel submitted a list of reservations about the likely politicization of the process and abuse by the court. Anxious about the potential biases such a court might exhibit, Israel never ratified its signature and thus isn’t a party. The United States and Russia are in a similar status.
A week ahead of the official launch of the investigation, which may include subpoenas, demands for depositions and eventually even arrest warrants and travel restrictions on politicians and senior people in the army and Shin Bet security service, Israel needs to make a decision.
Essentially, Israel has a clear binary choice: Ignore the ICC and the investigation or cooperate with it. Both, of course, have their pros and cons.
By ignoring the ICC and the investigation, on the grounds of questioning their authority, predispositions, bias, political motives and violations of sovereignty, Israel may end up having zero impact on the findings. Ex post facto presentation of counter facts will have little credibility and zero relevance.
To delegitimize the court’s findings, Israel will need a coalition of like-minded countries willing to defend it. When appealing to these countries, it’s somewhat unhelpful when the government is made up of Netanyahu, the right wing and the racist far right, and is supported by, yes, the Israeli branch of the Muslim Brotherhood, the United Arab List party.
Second, the Biden administration plans in the upcoming days to revoke Donald Trump’s executive order levying sanctions on Bensouda for her intention to investigate the United States for alleged war crimes in Afghanistan. Joe Biden will do so in the spirit of a return to multilateralism and a reassertion of Washington’s commitment to human rights. Yes, the United States will support Israel, but it’s doubtful the enthusiasm will be very high.
The second choice is to cooperate with the ICC investigation. Presumably, if this were the case, Israel would have responded to the March 9 letter. It still could in the next week or so. If Israel cooperates, it hypothetically could mitigate the findings and have an impact on the conclusions.
But at the same time, it would legitimize the investigation and contradict its professed opposition to the court’s very authority. Also, it would have to reveal data, intelligence methods and operational information that it prefers not to. If the investigation’s scope were expanded to include the settlements, cooperation would undermine Israeli official and de facto policies of the last 40 years or more.
Whether ignoring or cooperating, Israel needs to make a decision and stop kicking the can down the road. Here are the inconvenient truths: The ICC exists. There are 123 countries party to it. The investigation will proceed. The conclusions will be adversarial, maybe nasty.
Make up your minds. Denial is neither a river nor a policy.