Israel should reflect on its actions before criticizing ICC
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The only surprising aspect of the recent announcement by the chief prosecutor of the International Criminal Court (ICC) Fatou Bensouda that there is evidence to support an investigation into alleged Israeli and Palestinian war crimes was that so many on both sides appeared surprised by it. Since the government of Palestine acceded in 2015 to the Rome Statute, which established the ICC, probably with the sole aim that such an investigation take place, it might be more a case of wondering, for both those who support and those who object to this move, why it has taken so long to happen.
The chief prosecutor’s announcement was delivered, as one could only expect, in dry, business-like language that failed to hide the enormity of the court’s decision. It not only has far-reaching legal implications, but also just as many, if not more, political and moral ramifications.
As sure as the sun rises in the east, it was only a matter of nanoseconds between the announcement and Israeli Prime Minister Benjamin Netanyahu’s claim that Bensouda’s plan to pursue a war crimes probe in the occupied West Bank, East Jerusalem and Gaza Strip was an anti-Semitic act by the international body. Moreover, in a somewhat hysterical reaction, he called it “a black day for the truth and justice.” In a statement echoing the biblical warning, “Hast thou killed and also taken possession,” Netanyahu “reminded” the ICC that it only has the authority to prosecute in “lawsuits presented by sovereign states, but there has never been a Palestinian state.” Fellow right-wing MK and former Justice Minister Ayelet Shaked similarly announced in a tweet that the decision was political, hypocritical, and that the ICC had no jurisdiction in the matter.
As a matter of fact, the hypocrisy lies with these two leading politicians, who have been doing their utmost to prevent Palestinian self-determination from ever coming into being, and using that as a stick against the ICC doing its job of investigating war crimes and crimes against humanity. If one takes their argument to its logical conclusion, it should be permissible to commit crimes in places that are not officially recognized as states and, if possible, maintain their state of political limbo in perpetuity to avoid accountability. Moreover, by not being party to the Rome Statute, Israel sees itself as exempt from adherence to international law, or at least able to be selective about it.
By not being party to the Rome Statute, Israel sees itself as exempt from adherence to international law, or at least able to be selective about it
Yossi Mekelberg
Had those Israeli officials who joined Netanyahu in the chorus of attacks on the chief prosecutor paid attention to both her statement and the extensive and meticulous accompanying ruling, they would have realized that the court has in fact requested guidance on whether it has jurisdiction in this matter. This is despite Bensouda’s statement that she was satisfied that war crimes “have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip.”
It is true that Israel is not alone in not signing up to the Rome Statute and that there are other countries and leaders in other parts of the world that should be on the receiving end of similar investigations. But this hardly serves as an excuse to oppose such an investigation. There is no single honest defender of human rights who would not like all human rights violations to come to light and those who commit them named, shamed and made accountable. Moreover, there is probably not a single Israeli or friend of Israel who would want to see any of its politicians or military commanders being brought to The Hague to answer such serious accusations.
But, as many people have been warning for quite some time, in the absence of a fair and just political settlement and with the repeated rounds of hostilities, especially with Hamas in Gaza, and the daily oppressive occupation of the West Bank, the day when Israel would be investigated for such crimes was almost inevitable. Israel’s leaders should have had the wisdom and prudence to listen to those warnings instead of blaming the messengers.
Another accusation made by Israel — that the ICC is turning a blind eye to Palestinian war crimes — is factually wrong. In the same announcement, the ICC stated that, during Israel’s “Operation Protective Edge” in 2014, “there is a reasonable basis to believe that members of Hamas and Palestinian armed groups committed war crimes (including) intentionally directing attacks against civilians and civilian objects and using protected persons as shields; willfully depriving protected persons of the rights of fair and regular trial and willful killing or torture and/or inhuman treatment and/or outrages upon personal dignity.” These are all allegations of serious human rights violations.
However, the ICC also suggests that Israel, in the same war, launched disproportionate attacks on Gaza, willfully killed and injured Palestinians, and destroyed property. This is in addition to preventing Palestinians from exercising their right of self-determination, constructing settlements and security barriers on occupied territory, and by doing so entrenching the illegal occupation, not to mention the behavior of the security forces toward the Palestinians, which is in violation of international law.
Neither the shock nor the subsequent panic in Israel at the prospect of being investigated on such serious charges is unexpected or hard to understand. Yet, regardless of the motivations attributed to the ICC for pursuing this course of action, it could and should serve as an opportunity for a national dialogue in Israel on the ills of more than half a century of occupation and blockade of lands beyond its legitimate borders, and how this has eroded the country’s moral fabric.
Instead of blaming the Palestinians or accusing the international community of scapegoating Israel, it should do itself a favor and embark on a self-reflective exercise to consider how its securitization of the national discourse legitimized the use of excessive military force. It should have instead left no stone unturned in the search for a peaceful solution with the Palestinians based on mutual recognition of political rights and, even more importantly, everyone’s human rights. Had it done so, it would not have had to deal with the ICC at all.
• Yossi Mekelberg is professor of international relations at Regent’s University London, where he is head of the International Relations and Social Sciences Program. He is also an associate fellow of the MENA Program at Chatham House. He is a regular contributor to the international written and electronic media. Twitter: @YMekelberg
