The Rome Statute, which governs the International Criminal Court in The Hague, went into force 13 years ago. Today Israel is being dragged to The Hague kicking and screaming, and still refuses to understand the obvious: We have lost 13 years in which we could have utilized the Rome Statute to make Israel stronger and more just.
The price we would have paid to meet the requirements of international criminal law is much lower than the heavy price we have paid since 2002, as we repeatedly attempt to strike a balance between life and death.
International law, like all law, is a battleground, and as in every battle, those on the offensive have an advantage over those on the defensive. It is hard for me to imagine a more embarrassing symbol of the forlorn state of Zionist achievement than its leaders’ panicked flight from the same battlefield about which the Jewish intellectual giants who built modern international law had dreamed. That isn’t to say they were naive, and I am not recommending that the country’s present leadership ought to commit political suicide.
What I am proposing is that Israel’s leaders stop going on the defensive and instead take the initiative and make the changes needed to allow the leaders, and all of us, to win both the battle over the land of Israel and the battle for justice. It is not too late to do so — for now.
The State of Israel can fight without carrying out crimes, since it is strong, for now. The Palestinian side cannot fight without committing crimes, since it is weak, for now. With wisdom and determination, this advantage in power can be translated into a legal advantage.
International law, like all law, was built by the strong and for the strong, and that is why it benefits the strong more than the weak. The laws of warfare were built by strong nations to protect their monopoly over power, which they maintain through their standing armies. All other forms of warfare are thus placed in an inferior position.
The stronger party is able to guide its weapons to hone in on specific targets and is therefore exempt from legal responsibility if it is wise enough to do so. The weak cannot guide their weapons, and so are forced to choose between giving in and going to prison. If I were a general in the army, I would take advantage of this. If I were a wise people that expects its leaders to act for their own good and that of the people, I would order my leaders to get out of the corner where they have trapped themselves and turn this power imbalance into a legal advantage.
There will be a cost to adapting Israeli warfare to the international laws of warfare, but that cost is very low compared to the benefits that would accrue. Our military is not sacred, but the crimes it occasionally commits during combat are relatively minor, and seem to be carried out primarily by soldiers in the field who have not adequately suited their actions to the danger they face. It is possible to minimize these exceptions with relatively small professional and organizational effort. The cost of the exceptions that remain can be reduced through a fair examination of the situation once the fighting has ended.
Though many claim otherwise,international law does not require more from Israel than it does from the Palestinians, and it offers us an excellent arena in which to expose the systematic crimes of most of the armed Palestinian organizations. Ratifying the Rome Statute will not prevent us from carrying out an aggressive and resolute battle against the heads of these organizations, but it will provide us with legal tools that will help both us and the Palestinian people find more appropriate ways to resolve the conflict.
The question of the settlements hovers above all these issues. The danger of Israelis being dragged into The Hague because of the settlements has been greatly exaggerated. The chance that the existing legal and political boundaries will be breached to the point of using the International Criminal Court to deal with the settlements is so miniscule that it should not even be part of any rational cost-benefit calculation on the national level.
Now, when Israel’s military strength is so great, is the time to turn the military advantage into a legal one, at The Hague. Running away will just end up costing us more.
The writer is a law professor at the Interdisciplinary Center Herzliya who specializes in criminal law.
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