How to Avoid Getting Hauled Before The Hague

Yes, Palestine just became a member of the International Criminal Court. But Israel can still avoid global humiliation -- by subjecting itself to genuine self-scrutiny.

(L to R) Judges Marc Perrin de Brichambaut (France), Piotr Hofmanski (Poland), Antoine Kesia-Mbe Mindua (Democratic Republic of Congo), Bertram Schmitt (Germany), Peter Kovacs (Hungary) and Chang-ho Chung (Republic of Korea) during a swearing-in ceremony at the International Criminal Court (ICC) in The Hague on March 10, 2015. Back row ICC President judge Sang-Hyun Song (2nd L). AFP PHOTO / ANP POOL KOEN VAN WEEL netherlands out (Photo credit should read Koen van Weel/AFP/Getty Images)

Israeli leaders may wish it were an April Fool’s joke, but Palestine just became a member of the International Criminal Court (ICC). At a ceremony in The Hague, Palestinian Foreign Minister Riad al-Malki received a ceremonial copy of the court’s statute and declared that “the world is a step closer to ending a long era of impunity and injustice.”

Palestinian membership in the court does not ensure an ICC investigation, let alone indictments. ICC chief prosecutor Fatou Bensouda will likely weigh her options for many months. One important question is whether Palestine now formally “refers” its situation to the court. That step is not essential because Palestine has already given the court jurisdiction dating back to last June. But a referral, which is widely expected, would be a signal to the court that Palestine still wants an investigation into Israel’s conduct and will be prepared to support it.

Palestine’s ICC membership, the recent Gaza conflict, and Israel’s election result have all increased the possibility of a confrontation between Israel’s leaders and the international court. There is even a small but real chance that the ICC could end up indicting senior Israeli officials.

A direct clash between Israel and the court would not serve anyone’s interests — and it wouldn’t do anything to revive the moribund peace process. The ICC prosecutor’s ample discretion may help avoid that outcome. But Israel’s leaders and its supporters around the world should also be looking at other strategies to avoid an outcome that could severely damage the country’s international standing.

Recent war crimes allegations against Israel have usually centered on its military actions in the Gaza Strip. The Israeli operation there in the summer of 2014 resulted in approximately 2,000 Palestinian deaths, the majority of them civilians. Human rights groups harshly criticized Israel for employing excessive force and targeting civilian buildings and homes. For their part, Israeli officials insisted they conducted the war as carefully as possible given Hamas’s policy of mingling with and sheltering behind the civilian population.

However one assesses Israel’s record in Gaza, it has an important defense to ICC scrutiny: It is investigating its own conduct. Shortly after the fighting began, the Israel Defense Forces initiated an internal investigation of civilian deaths and possible violations of humanitarian law. Because the ICC’s rules require it to defer to genuine national investigations, indictments against Israelis based on the Gaza fighting are unlikely.

The Palestinians cannot boast any similar self-scrutiny. In fact, rocket attacks by Hamas toward Israeli cities — mostly intercepted — might be the clearest crimes during the Gaza conflict. If an ICC investigation focused only on the Gaza conflict, therefore, Israel could feel some confidence that it would emerge unscathed.

But Gaza isn’t the only issue. The Palestinian Authority has given the court jurisdiction throughout its territory. The most explosive issue for Israel is not its conduct of the Gaza war but the settlements that dot the West Bank. The ICC’s statute lists as a war crime “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.” Israeli officials and sympathetic scholars have argued that the crime doesn’t apply. But their arguments — usually based on uncertainty about who was sovereign in Palestine before the occupation — are strained.

If the ICC does investigate Israel’s settlements policy, it could well pursue senior officials, possibly Prime Minister Benjamin Netanyahu himself. Bensouda and her predecessor, Luis Moreno Ocampo, have emphasized a policy of pursuing those “most responsible” for crimes. And those most responsible for Israel’s recent settlements policy are its elected leaders.

There are two principal ways to avoid a confrontation between the ICC and Israel’s elected leaders. The ICC statute gives the U.N. Security Council the power to delay an investigation for up to a year. Recent reports suggest that the United States might pursue this strategy. But it’s not clear that Washington could win enough support on the council; deferring an ICC investigation would require the acquiescence of the other four veto-wielding members as well as several non-permanent members. Even then, the council could only delay a court investigation for a year and would have to renew the deferral annually.

A better path to avoiding an Israeli confrontation with the ICC is Israel’s own legal system. Israel has an active, respected, and independent judiciary that is unique in the region. Its Supreme Court, in particular, enjoys a strong international reputation and has several times challenged sensitive government policies, including in the occupied territories. Its rulings on the controversial Israeli security barrier, for example, forced the government to make several major adjustments.

Yet for all its independence, the top Israeli court has repeatedly avoided the question of whether Israeli settlements in the West Bank are legal. “The Court has done its utmost to avoid having to rule on the general legality of establishing settlements,” Hebrew University professor David Kretzmer has written. In a series of cases, the Supreme Court has punted, deciding that settlements are a political question that should be resolved through international negotiations. 

That interpretation should change. Palestinian groups and Israeli human rights advocates regularly challenge Israeli occupation practices in court, and these ongoing cases will allow the court to revisit its approach. There are international rules the Israeli court can apply if it chooses to do so. Most importantly, the Geneva Conventions govern what occupying powers can and cannot do. As Kretzmer notes, Israel’s court has applied the Geneva rules to many questions related to the occupied territories, but never to directly address the legality of settlements. If it applies these standards fairly, the Israeli court could impose sharp restrictions on new settlements and, perhaps even require the dismantling of established ones.

However the Israeli court ultimately rules, the ICC prosecutor would almost certainly delay its own investigation while the domestic legal process unfolds. And the ICC would pay close attention to the Israeli court’s reasoning, which might affect its own legal analysis of key questions.

Taking on settlements would put Israel’s top court into its most sensitive position ever. But the options for Israel are narrowing. Its settlements policy is unsustainable, and it would be better for Israelis to hear that from Jerusalem than from The Hague.

Photo credit: Koen van Weel/AFP/Getty Images

Correction, April 1, 2015: An earlier version of this article misstated David Kretzmer’s first name. It is David, not Daniel.

 Twitter: @multilateralist

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