In the Aftermath of Parliamentary Elections in Israel

In the aftermath of the parliamentary elections in Israel, the two primary points of focus have been two of Prime Minister Netanyahu’s statements. First was his assessment that there...

In the aftermath of the parliamentary elections in Israel, the two primary points of focus have been two of Prime Minister Netanyahu’s statements. First was his assessment that there is no Palestinian partner for a negotiated two-state solution and, therefore, that a Palestine state would not come into existence in the near future. While many news outlets have reported this as a 180 degree rehearsal by Prime Minister Netanyahu away from supporting a two state solution, it was actually consistent with his previous position. As detailed by Yishai Schwartz at Lawfare, Netanyahu’s statement was not a vow to prevent a Palestinian state but a prediction that sufficient conditions for a Palestinian state to be created were not on the horizon. The second controversial statement was a call to Jewish voters to head to the polls, because Arab voters were exercising their civic duties. In the aftermath of the elections, the conversations will evolve away from analysis of campaign statements and toward a discussion regarding the International Criminal Court’s (ICC) involvement in the Israeli-Palestinian conflict.

One of the most wildly inaccurate battle cries of Israel supporters is that the ICC is out to get Israel. While activists on both sides of the issue are invested in feeding this narrative, so far, no action on the part of the Court has supported the claim that the ICC is Israel’s nemesis. Indeed, it has become de rigeur for social activists and a mushrooming cadre of mainstream reporters to not only criticize Israel’s domestic and foreign policies, but to affix heinous labels such as ‘apartheid’ or ‘war criminals’ to the Israeli- Palestinian conflict. Even those who understood the fallacy of these narratives fear that the involvement of the ICC will lend legitimacy to these characterizations. This post will show that nothing could be further from the case.

The ICC, in its short history, has had three encounters with the State of Israel. First, was an attempt by the Palestinian territories to demand a preliminary examination of Israeli actions in 2010 around the Gaza flotilla. This was dismissed by Chief Prosecutor Luis Moreno Ocampo for jurisdictional reasons. Palestine was not a state and therefore ineligible to request a preliminary examination by the Court. It was not the purview of a criminal court, he said, to issue a legally binding judgment regarding the classification of states. Though Palestine appealed the decision, Ocampo would not budge. Second was an appeal by the small Island nation of Comorros who was (and still is) a party to the Rome Statute of the International Criminal Court. They were the country to which the boats used to try to break the blockade were registered. As the Comorros were a state party, the Court had no choice, but to accept the declaration. The preliminary examination, however, did not lead to a full investigation, as the Office of the Prosecutor (OTP) decided that a sufficient gravity threshold to consider further investigation had not been met. By the time the Israeli-Palestinian issue returned to The Hague the third time, the new prosecutor, Ms. Bensouda, was far less circumspect. The Court accepted the notion of Palestinian statehood, which then bound the Court to accept the ad hoc declaration under Article 12.3 requesting a preliminary examination into Operation Protective Edge.

Granted, the political geist had shifted quite a bit in that time. The campaign for secession by the leadership of the Palestinian territories had been given the stamp of approval by the United Nations General Assembly, when Palestine was granted ‘non-member state’ status, rather than the ‘observer entity’ title it held below. Several scholars have argued that this declaration helped Palestine meet the requirements for statehood outlined by the Montevideo convention of 1933. These arguments tend to be porous and often rather liberally blur the line between law & politics.  Article 1 of the Convention, which sets the requirements for statehood require a permanent population, a defined territory, a government, and the capacity to enter into relations with other states, none of which are really true in the Palestinian territories as they currently are. The question of who to blame for these deficiencies is difficult to answer, but the fact is the criteria for statehood have not been met.

Moreover, the distinction between the legal terms ‘case’ and ‘situation’ is crucial for evaluating the potential outcome of an ICC investigation. The ICC cannot, by definition, “go after” anybody. The Court opens an examination of a situation, which is defined by geographical boundaries. In this case, the situation is in the Palestinian territories. The examination then proceeds to gather information on all wrong doing in the region within the temporal scope of the examination, irrespective of political or military investigation. This means that calling on the ICC can very quickly backfire for Hamas and the Palestinian authority. The very occupation, which the Palestinians claim is illegal under international law, may or may not be so, but it is far outside the temporal limitations of the ICC investigation, which begins only in 2014. What does fall within the scope includes Palestinian rockets aimed at Israeli civilians, and the common Hamas tactic of firing a rocket from a building and then herding dozens of small children into the building so that if Israel should respond, the news media will be able to capture video of dead and mutilated small children. These tactics have all been well documented, and are more likely to land Palestinian paramilitary operatives in the dock at The Hague than the soldiers of the Israeli army.

Supporters of Israel have reason to be concerned about the international public’s rhetorical slide away from analytical disagreements and towards strong condemnation of Israeli policies. The International Criminal Court, however, has done nothing so far to indicate that it will become an instrument of this trend.

Dave Benger

David Benger is a former Professional Associate at the American NGO Coalition for the International Criminal Court and a former legal intern on the defense team for Jean Pierre Bemba at the ICC. He is an alumnus of Brandeis University and the Brandeis in the Hague intensive semester in public international law and international criminal law at Leiden University. He will begin his studies at the Fletcher School for Law and Diplomacy next Fall. The views expressed are entirely his own, and he can be reached at [email protected]
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