How Israel Stands to Lose at the ICC, Without a Single Trial Taking Place

The devastating prospects of Palestine joining the International Criminal Court has less to do with the chances of prosecution of soldiers, and more to do with the impact it will have on Israel's precarious international image.

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"We will not allow Israeli soldiers and officers to be dragged to [the International Criminal Court in] The Hague," Prime Minister Benjamin Netanyahu told his cabinet this week. While it suits his scaremongering to play on the Jewish state’s emotional link with its army, the chances of any of the nation’s children ever ending up in front of an international court are vanishingly small.

This doesn’t detract from the fact that Palestine joining the ICC is a devastating prospect. Its significance, however, has little to do with the likelihood of any actual prosecution.

Confusion, disinformation and – in the case of senior Israeli politicians – all-out hysteria has surrounded the Palestinian decision to sign the Rome Statute, the 2002 document that created the ICC. International humanitarian law, codified in the Geneva Conventions, has established extremely complex rules for the conduct of war and the Rome Statute enshrines the concept of “command responsibility” – that leaders can be held responsible if they fail to prevent their subordinates from committing crimes. Activists and pundits like to bandy about accusations of war crimes, but the ICC makes legal, not moral, judgements.

From initial reports by human rights groups, there may indeed be a case for levelling war-crime charges at Israel for some of the incidents in last summer’s conflict in the Gaza Strip, for instance. But war crimes trials can be highly technical affairs. Israel can also draw on international law to make a strong case in its own defense regarding proportionality and argue that they did not intentionally target non-combatants (the Palestinian militant groups, who boasted of targeting civilians, are on much more shaky ground).

Many other factors militate against the chances of Israeli citizens appearing in front of the court.

One of the central principles of international justice is that the threat of prosecution can help prevent atrocities. But with few and notable exceptions – the tribunals in Yugoslavia, Rwanda and Sierra Leone in particular, which were not part of the ICC – it has had only limited success in bringing perpetrators to trial and delivering justice for victims.

In fact, the ICC has so far only managed to convict two people – Thomas Lubanga Dyilo and Germain Katanga, both Congolese warlords. The process of delivering an indictment is exceptionally convoluted. It took a full five years from the opening of the investigation until Lubanga’s case even came to court, and a further three years until his conviction.

International justice processes are strongly influenced by security and economic interests that go far beyond the obligations laid out in the Rome Statute. Jerusalem will have noted how one of the ICC’s most high-profile cases to date – against Kenyan President Uhuru Kenyatta – recently collapsed in disarray. Kenyatta had faced charges of crimes against humanity in relation to the bloodshed that followed the disputed presidential election of December 2007, but prosecutors said witness harassment and consistent obstruction by the Kenyan government fatally undermined their investigations. They were also hampered by international reluctance to pressure the Kenyan government, seen as a crucial ally in the war on terror in east Africa.

The ICC can’t make arrests itself, and has failed to detain high-profile figures such as Sudanese President Omar al-Bashir, charged with genocide in Darfur, and the African Union – which includes 34 ICC member states – has refused to deliver him.

The ICC is a court of last resort, and the prosecutor can only launch a preliminary examination (followed by a full criminal investigation) if Israel proves “unwilling or unable” to investigate itself.

Israel could plausibly argue it had the ability and will to investigate its own alleged crimes – there are 13 investigations into Operation Protective Edge already underway – although its record of military investigation has been accused of falling far short of international legal standards.

The occupation, however, could be put on trial. Jurists and international justice aficionados will happily dissect legal minutiae on this issue for years to come. Israel will be the test case, and this process will roll on and on, sucking all the oxygen out of Israel’s strategies for public diplomacy (while the Palestinian bid for recognition as a state will gain unstoppable momentum).

In any case, ICC prosecutor Fatou Bensouda is well aware of the implications of taking on an Israel-Palestine caseload. She will likely baulk at launching an investigation that would consume the court’s efforts entirely and cause added problems to a body that is already struggling with international funding and support.

But none of this matters very much at all. The mere prospect of an investigation by such a prestigious body serves as the ultimate delegitimisation, Jerusalem’s current bugbear. Unlike the United Nations, whose report on the summer's war is expected to be devastating, the ICC cannot be accused of having an anti-Israel agenda. After all, it has so far only brought African cases to trial.

So why have Israeli diplomats been describing the ICC bid as “Armageddon” and “the doomsday option,” the sort of language usually reserved for the Iranian nuclear project (a more plausible existential threat)? It’s because they lack the tools to fight it. Just like the boycott, divestment and sanctions movement, which is unlikely to have any real effect on Israel’s economy, the real impact of the ICC move will be on Israel’s already precarious international image. Despite internal battles on the nature of its democracy, Israel still very much wants to see itself as part of the family of nations, not a rogue state subject to such international censure.

The Zionist dream was about the Jews defending themselves. Israel is now permanently on the defensive, in a forum where its hard power no longer has much force.

Daniella Peled is editor of the Institute for War and Peace Reporting and has written widely from across the Middle East and Afghanistan.