Israel Accepts a Day In Court

Why the Israeli government is taking the unprecedented step of allowing International Criminal Court officials to visit the country.


When Israeli Prime Minister Benjamin Netanyahu addressed the United Nations last year, he immediately pilloried the world organization for being “obsessively hostile” to Israel. How is it, he asked, that the General Assembly could pass 20 resolutions criticizing Israel, compared to only one about Syria? In his assessment of the UN, at least, Netanyahu spoke for most of his people: A recent survey found that 70 percent of Israelis viewed the organization unfavorably. But if there’s a global institution Israelis suspect more than the UN, it might just be the International Criminal Court (ICC). Since the court’s creation in the late 1990s, Israeli officials have worried that adversaries would employ the ICC as a new weapon in their struggle. And while most UN bodies can only pass toothless resolutions, the ICC can issue arrest warrants with real consequences for Israelis.

Given all this, why is Israel now cooperating with the court in unprecedented ways? Last week, the Israeli Foreign Ministry confirmed that it would allow ICC officials to visit the country as part of an assessment into the situation in Palestine, including the 2014 war in Gaza. The details of the visit are still in the works, but the announcement marked a dramatic departure from Israel’s posture last year, when Prime Minister Benjamin Netanyahu called the ICC probe “absurd.”

Has Netanyahu changed his mind? Is Israel now convinced that the ICC has a productive role to play in the region? In fact, Israel’s détente with the court is the result of legal pragmatism and geopolitics — and the relationship could still go badly wrong.

A series of moves made ICC scrutiny of the Middle East conflict possible. Most importantly, the U.N. General Assembly in late 2012 recognized Palestine as a “nonmember observer state.” That vote in turn allowed the ICC to recognize the Palestinian Authority’s declaration granting the court jurisdiction over its territory. Shortly after Palestine did so, ICC Prosecutor Fatou Bensouda opened a preliminary examination — a necessary first step to a full investigation.

No Israeli officials are going to be indicted by the ICC anytime soon, but international investigators are now analyzing whether Israelis — and Palestinians — committed serious crimes in Palestinian territory. Palestinian officials — as well as many human rights observers — have accused Israel of a range of violations during its July 2014 offensive in Gaza, including targeting civilian facilities and using excessive force. Most observers agree that Hamas is even more vulnerable to prosecution, but its leaders have publicly backed an ICC probe.

If Bensouda finds that war crimes did take place in Palestinian territory, she will have to decide whether or not national courts are adequately investigating and prosecuting them. Israel’s own inquiries into its operation in Gaza have so far ended without significant prosecutions, leading to charges that it is shielding its forces from accountability.

Even more troubling for Israel is the possibility that its continuing settlement activity in the West Bank may constitute war crimes. The ICC’s founding document includes the crime of “directly or indirectly” transferring civilian populations to occupied territory. If the ICC determines that Israeli settlement policy matches that description, senior Israeli officials, including the prime minister, could face charges. Given the stakes — and Israel’s own suspicions about the ICC — Netanyahu’s government was no doubt sorely tempted to stiff the court by denying its officials access to Israeli territory.

But Israel’s cautious welcome is the savvier approach. The ICC’s inquiry remains preliminary, which means investigators won’t be interviewing witnesses or gathering other evidence during their time in Israel. But they will undoubtedly get a full exposition of the country’s legal arguments regarding the ICC’s jurisdictional limitations and the Israel Defense Forces’ internal investigations, which Israel will argue are thorough, independent, and credible.

Israel is likely calculating that openness may help foster a more sympathetic hearing from the prosecutor’s office. And if not, Israel hasn’t lost anything. It has maintained its position that the ICC doesn’t have jurisdiction and could quickly revert to a policy of noncooperation.

Another factor encouraging a flexible Israeli policy is the evolving U.S. relationship with the ICC. The Israeli stance toward the court has thus far closely tracked with U.S. policy: When Bill Clinton’s administration signed the Rome Statute establishing the ICC in 2000, but said it didn’t intend to ratify it, Israel followed suit. When George W. Bush’s administration “unsigned” the statute in 2002, Israel did the same.

But U.S. policy has become friendlier to the court in the ensuing years. In its second term, the Bush administration backed away from its hostility to the court, and Barack Obama’s administration has taken additional steps to foster cooperation. In particular, U.S. officials helped facilitate the transfer of several indicted persons to the court, including a Congolese warlord who turned up at the U.S. Embassy in Rwanda. The United States faces its own inconvenient ICC inquiry into U.S. detainee policy in Afghanistan, and the Obama administration has responded by quietly exchanging information with the court rather than simply slamming the door.

The closer relationship between Israel’s most important ally and the international court means that Israel needs to tread carefully. The United States clearly has no desire for a full investigation in Palestine. The State Department denounced Palestine’s move to join the ICC and criticized Bensouda for opening a preliminary examination. But Washington also wants to avoid an open confrontation between its ally and the ICC.

That possibility remains very real. If the court decides to launch a full investigation, Israeli officials will no doubt revive their arguments that the court is politicized, illegitimate, and operating beyond its mandate to target Israel. Israeli officials have sought in the past to enlist U.S. help in restraining or punishing the court — and can be expected to do so again, if they feel threatened by it.

In other words, ICC officials should make the most of their upcoming trip to Israel. A return invitation is far from certain.


David Bosco is an associate professor at Indiana University's School of Global and International Studies. He is the author of books on the U.N. Security Council and the International Criminal Court, and is at work on a new book about governance of the oceans. Twitter: @multilateralist