The International Criminal Court’s ruling that it has jurisdiction over the occupied territories and East Jerusalem has predictably sparked angry reactions in Israel. Prime Minister Benjamin Netanyahu based his criticism of the decision on two familiar foundations. First, “The court ignores the real war crimes and instead pursues Israel, a country with a strong democracy that sanctifies the rule of law.” Second, “In this decision, the court undermined the right of democratic countries to defend themselves against terror.”
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But Netanyahu’s arguments are ludicrous. The court didn’t rule that Israel was guilty of war crimes; it merely responded to a request from prosecutor Fatou Bensouda, who asked the pretrial chamber of judges to rule on the fundamental question of the court’s territorial jurisdiction. Nor is there any connection between the fact that Israel is a democracy and the commission of prima facie war crimes. Democracies have committed and still commit war crimes, and the fact that they are democracies doesn’t grant them immunity from investigation or prosecution.
Israel’s complaint that the ICC ignores real war crimes and is “persecuting” it for political reasons tells us more about Israel than it does about the court. Israel has failed to understand that its very status as a democratic, law-abiding country obligates it to uphold higher standards than those demanded of countries like Iran, Syria or Sudan. Nor has the court denied Israel’s right, or that of any other country, to fight terrorism to protect itself. But it insists that the war on terror is conditional on compliance with international law and the laws of war, and that an international body has the power to determine what constitutes legitimate action and what constitutes a war crime.
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The most important part of the decision is its recognition of Palestine as a state with the right to seek redress from the court. The judges didn’t rule on its borders or seek to solve the Israeli-Palestinian conflict, but they considered Palestine’s recognition by the UN General Assembly and the fact that the Palestinian Authority joined the ICC in 2015 and deemed these sufficient under the Rome Statute, which determines who is authorized to seek redress from the court. They thereby showed that Israel’s battle against recognition of the State of Palestine is pointless.
Israel should view the judges’ decision, which paves the way for an investigation into its conduct in the territories, as a red flag. Israel now has the status of a suspect state, and it must present its arguments and its interpretation of the incidents the court will investigate. Throwing mud at the ICC and refusing to cooperate with the investigation won’t acquit it if its guilt is in fact ultimately proved.