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Israel’s challenge to the International Criminal Court

/ Managing Editor - January 20, 2015

Israeli government officials have reacted furiously to the Palestinian Authority’s decision to join the International Criminal Court. While Israel and its allies have attempted for years to prevent it from signing the Rome Statute of the ICC, Israel has not previously been opposed in principle to the court. Indeed, the Israeli Foreign Ministry’s position is that “Israel has been a long-standing advocate of the Court.” Now, however, in response to the ICC’s launch of a preliminary investigation into alleged crimes in Palestinian territory, Israeli government officials have chosen to challenge the very existence of the court. Is Israel’s campaign to delegitimate the ICC likely to advance its interests? Based on comparable campaigns by aggrieved states, the answer is almost certainly no.

States generally don’t like their actions or policies coming under the microscope of the ICC. But not every state responds in the same way to its record facing the judicial scrutiny of the ICC. Some reactions and responses may be more appropriate and useful than others. When it became apparent that the actions of British troops in Iraq would come under ICC investigation, for example, British officials responded tersely but maintained public support for the court and apportioned significant resources to demonstrate that the state had sufficiently investigated and punished British citizens responsible for abuses in Iraq. More recently, when the ICC reported that it was conducting a preliminary investigation into the U.S. military’s use of “enhanced interrogation techniques”in Afghanistan, the U.S. response was to coolly reiterate its policy that the court did not have jurisdiction over its citizens.

Israeli leaders seem to believe that they cannot afford the lower key approach adopted by Britain and the United States. The Netanyahu government seems to fear the ICC and to see political opportunity in highlighting its fervent opposition to its functioning. One view is that the government knows that the Israel Defense Forces committed atrocity crimes in Gaza (and perhaps in the construction of Israeli settlements in occupied territories) and therefore will be targeted by the court. Another explanation is that the government believes that institutions like the ICC are so biased against Israel that they will inevitably be unfairly targeted. Some combination of these fears seems to have convinced senior members of the government to launch a campaign against the court.

Recently, Israel has shifted its strategy from apportioning blame on Palestinian Authority President Mahmoud Abbas and the PA to lashing out at the ICC – not just for its potential investigation. Israeli Foreign Minister Avigdor Lieberman declared last week that any decision by the ICC to investigate the alleged crimes was “solely motivated by political anti-Israel considerations”and that Israel would seek to “dismantle this court, a body that represents hypocrisy and gives terror a tailwind.” Lieberman went so far as to state that the ICC should be out of business altogether:

We will demand of our friends in Canada, in Australia and in Germany simply to stop funding it. This body represents no one. It is a political body. There are a quite a few countries – I’ve already taken telephone calls about this – that also think there is no justification for this body’s existence.

That will almost certainly be a central theme in the campaign of attack ads Netanyahu reportedly plans to unleash on the ICC and its Chief Prosecutor Fatou Bensouda.

The closest equivalent case in the ICC’s brief history to Lieberman’s position was the campaign unleashed by John Bolton, who during his tenure as President George W. Bush’s ambassador to the United Nations publicly rejoiced at his mandate of undermining the court. Bolton argued that the United States should “isolate [the ICC] through our diplomacy, in order to prevent it from acquiring any further legitimacy or resources.” In 2002, when the Bush administration took the famous and unprecedented step of “un-signing” the Rome Statute, Bolton called it “the happiest day of my life.” But Bolton’s efforts did not have their intended effect. After investing significant political and legal resources in an attempt to trounce the ICC, U.S. lawmakers ultimately realized that their overzealous anti-ICC mission was counter-productive and that a functioning court could actually serve Washington’s interests. By 2006, Secretary of State Condoleeza Rice stated that the United States’ policies toward the court were “sort of the same as shooting ourselves in the foot.”

Unleashing a political and media campaign with the aim of undercutting the ICC as an international institution may thus be counter-productive. That may explain why, according to recent reports, some officials within Israel’s Foreign Ministry have advised the government to refrain from publicly attacking the court and its prosecutor. Calling into question the ICC’s existence is likely to only isolate Israel further, while strengthening the resolve of those who believe that Israel has something to hide and that the Palestinian Authority should come under the microscope of ICC prosecutors. Israel would be better served by engaging, even in a limited fashion, with ICC investigators and using established procedures to challenge the court’s jurisdiction. Israel could engage with the court by providing it with the evidence it purportedly has of crimes committed by Hamas. It would also be wise to undertake, as Britain has, the necessary preparations to demonstrate that its judiciary has investigated alleged crimes committed by Israeli citizens and argue that it is both able and willing, under the ICC’s principle of complementarity, to prosecute any alleged Israeli perpetrators itself.

There is one other irony. Bolton’s fiery rhetoric did not succeed in fundamentally damaging the ICC. Instead, it likely bolstered the court’s credibility as an independent institution that didn’t have to rely on Washington’s support to function (a closer relationship may bring this into question). Lieberman and Netanyahu’s anti-ICC diatribes may persuade some allies that are already ambivalent to the court, such as Canada, to fulfill their own threats of “consequences” for the Palestinians joining the ICC. But it will almost certainly fall on deaf ears elsewhere. Instead, Israel’s fury gives credence to the view that the court is both a deeply relevant institution in international politics and that it is not simply a tool of Western powers. In the long run, the Israeli government’s frenzied reaction will likely bolster, rather than hinder, the court’s reputation.

There is no consensus or study on why states react differently to the ICC’s scrutiny of their actions and policies. But it seems clear that some responses are bound to be wiser – and more effective – than others.

Mark Kersten is a researcher based at the London School of Economics and the creator of the blog Justice in Conflict.