Israel’s strategy for dealing with the International Criminal Court has collapsed.
Fatou Bensouda, the ICC’s chief prosecutor, has already adopted doubtful legal arguments made by the Palestinians that: The PLO comprises a state; all parts of Israel that were under illegal occupation by Jordan and Egypt from 1948-1967—including the Old City of Jerusalem—belong to the state of Palestine; Jewish settlements are an international crime; and Israeli soldiers are war criminals.
Therefore, we already know what the results of the “investigation” announced by Bensouda on Friday will be and what “evidence” will be collected.
Meanwhile, the many crimes of the Palestinians, from torture and anti-Jewish apartheid policy to acts of terrorism and murder and the intent to commit genocide, are not considered enough of a basis for the ICC prosecution to launch an investigation.
The restriction that Bensouda attached to her decision to proceed with an investigation into alleged Israeli “war crimes” only makes the situation worse.
When she announced the investigation, she asked three judges to confirm that a state of Palestine existed that was sovereign over all parts of the Gaza Strip, Judea and Samaria as well as eastern Jerusalem. A year and a half ago, those same judges ruled that the prosecution needed to move ahead with another anti-Israeli case, involving claims by Turkish allies on the Comoro Islands that Israeli naval commandos and the commanders that oversaw committed war crimes in the raid on the Mavi Marmara vessel in 2010.
We know what the ruling will be: The ICC will become the first international tribunal to rule that the “state of Palestine” is sovereign over all disputed areas of Judea, Samaria and Jerusalem.
Just two weeks ago, the media reported that high-ranking legal scholars in Israel’s Attorney General’s Office had warned Prime Minister Benjamin Netanyahu not to take steps to apply Israeli law to the Jordan Valley, out of concern that the ICC would decide to launch an investigation against Israelis for that “crime,” too.
Even at the time it was obvious to anyone who keeps tabs on the ICC that there would be an investigation against Israel, regardless of whether sovereignty was applied to the Jordan Valley or not. The legal advisers’ warning not only demonstrated a total lack of understanding of the ICC, but also gave it more motivation to act against Israel by supplying it with the goods: proof that the court is influencing a state’s conduct with threats of legal action.
This was not the first time that legal authorities in Israel, including some at the top ranks of their profession, have operated in a manner than unintentionally spurs on the ICC to proceed with its anti-Israeli actions. High-ranking legal authorities have talked about the Israeli legal system as a “defensive shield” against ICC investigations, as if the ICC were acting out of professional legal motivations rather than political and diplomatic ones.
As long as Israel continues to treat the ICC as a legal entity, and as long as it maintains relations with ICC staff under the assumption that their intentions are good, as long as Israel continues to make legal arguments as if anyone in the ICC is listening, it will continue to lose the battle. We must wake up and take more stringent political steps—as the United States already has—before the nightmare of indictments against Israeli soldiers becomes a reality.
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.