As expected, a pretrial chamber of the International Criminal Court on Friday determined that a Palestinian state exists with jurisdiction in the Gaza Strip, Judea and Samaria and eastern Jerusalem.
In doing so, the ICC’s general prosecutor authorized an investigation into war crimes allegedly perpetrated in “Palestine.”
The response to the ruling came quickly and was also predictable. Palestinian criminals, Palestinian terrorist organizations, such as Hamas, and other Palestinian and pro-Palestinian elements rejoiced. Israeli Jews, including the potential victims of these Palestinian criminals, condemned the ruling.
As for anyone who thinks the ICC will act in accordance with the law, these reactions are bewildering. Since when do murderers and other criminals celebrate the launch of a criminal investigation that could lead to indictments against them? Since when do the potential victims of such murderers oppose criminal proceedings against the very criminals who have targeted them?
The catch is, what’s obvious clear to the leaders of the Palestinian Authority and Hamas is also evident to the elected leaders of Israel: The ICC acts not according to the law, but rather political impulses. It was clear, therefore, that the court would authorize the general prosecutor to investigate, even though the court itself explicitly stipulates it doesn’t have that authority without the agreement of a state, and that according to the law, Palestine is not a state.
It is also clear now, for the same reason, that the prosecutor’s investigation (or more accurately, her replacement, who will be chosen in the coming days) will result in indictments and arrest warrants against Israelis for committing the “crimes” of Jewish settlement and lawfully defending Israeli citizens from Palestinian terrorist attacks. And it’s also apparent that Hamas is correct that no Palestinian terrorist will stand trial.
What can Israel do? It must act on all fronts to impair the legitimacy of the International Criminal “Court,” impede its investigation in any way possible and use the opportunity to foster international cooperation against the ICC.
Among other things, this means Israel must make it illegal for any Israeli individual or organization to cooperate with the “court.” Similar to the same prohibition that exists in U.S. law, “informal” collaboration by the country’s jurists with the ICC prosecutor must be criminalized. Israel also must finance its cooperation with the United States, which has imposed sanctions on the ICC.
Only international political pressure can stave off the looming indictments and drumhead court-martials against Israelis. Any attempt to treat the ICC as a legal body increases this illegitimate institution’s room to maneuver.
Professor Avi Bell is a lecturer at the University of San Diego School of Law and at Bar-Ilan University’s Faculty of Law.
This article first appeared in Israel Hayom.