The decision of the Office of the Prosecutor at the International Criminal Court that there is a basis to investigate Israel on suspicion of war crimes, as well as Hamas and the Palestinian factions, should not have surprised anyone.
During the five years in which the preliminary examination by ICC prosecutor Fatou Bensouda was underway, the Israeli government provided her with more and more material. The examination may have begun in the wake of the events of Operation Protective Edge in Gaza in 2014, but since then an endless number of incidents have been added to it. First on the list is the question of the firing at protesters along the border with Gaza. The question of the settlements, which never stopped expanding, was also placed on the doorstep of the prosecutor, with the most recent addition to this being Prime Minister Benjamin Netanyahu’s declared plans for annexation.
Israel has demonstrated crude and continued contempt for international law. At the same time, in the absence of negotiations, Israel has pushed the Palestinians directly into the arms of international institutions. The only surprising thing is Israel’s own response. Attorney General Avichai Mendelblit rushed to release, just a moment before the prosecutor’s announcement, an urgent legal opinion whose main point was the old claim that the ICC does not have the jurisdiction to hear the matter because Israel never confirmed its membership in the treaty, and because Palestine is not a real state and therefore cannot provide the court with the criminal judicial authority required.
These claims are well known to the international community and to the prosecutor and her staff. Moreover, the reliance on the claim of lack of authority is strange, to say the least. In practice, Israel does not deny the carrying out of war crimes but is focusing on the question of who is authorized to judge it, if at all, and accuses the ICC of politicization.
Even harder to understand is the claim that the issue of the Israeli-Palestinian conflict must be left for dialogue and negotiations and the legal process will only harm it, while it is clear to all that there is no such process on the table because the Israeli government is not interested in it. Even more so, the government itself publicly expresses growing support for annexation. Israel’s lawyers also claimed that the Palestinians need to decide if they are a sovereign country – that can grant authority to the ICC – or occupied territory that does not have sovereignty. This is also an old and well-known legal argument, but ridiculous diplomatically: Israel is actually admitting in this that the Palestinians are under occupation and not sovereignty.
The prosecutor’s decision is the final warning alarm for the Israeli government and its institutions that are interested in denying the reality of the occupation. In the next few months the court will decide whether to open an investigation. Alongside the fear of the possible results of the investigation, it is regrettable that Israel is not capable of recognizing the tragedy that it has brought upon itself through blindness and arrogance – the occupation and the settlements – and it is regrettable that only an external threat might open its eyes.
The above article is Haaretz’s lead editorial, as published in the Hebrew and English newspapers in Israel.
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