The ICC’s Israel Investigation Could Backfire

It’s more likely to inflame nationalist sentiments than change anything on the ground.

By Dahlia Scheindlin, a political analyst and policy fellow at the Century Foundation, and Garentina Kraja, a Kosovo researcher.
Israel's controversial separation wall runs between the Israeli settlement of Pisgat Zeev (left), built in a suburb of East Jerusalem, and the Palestinian Shuafat refugee camp (right) on Feb. 11.
Israel's controversial separation wall runs between the Israeli settlement of Pisgat Zeev (left), built in a suburb of East Jerusalem, and the Palestinian Shuafat refugee camp (right) on Feb. 11. AHMAD GHARABLI/AFP via Getty Images

Israelis should not have been surprised by the International Criminal Court’s (ICC) March 3 announcement that it plans to open an investigation into alleged war crimes perpetrated in the occupied Palestinian territories. The threat of international prosecution has hounded Israel for years. But the latest news out of The Hague still managed to land like a bombshell—just as Israel geared up for its fourth election in two years.

The nascent ICC probe into Israeli—and Palestinian—activity unleashed firebrand reactions from the campaign trail. For Israeli Prime Minister Benjamin Netanyahu, the ICC became the latest manifestation of his longstanding charge that international bodies questioning Israeli activity are anti-Semitic. One of Netanyahu’s right-wing challengers, Avigdor Lieberman, attacked the prime minister personally for failing to head off the diplomatic calamity. The left-wing Meretz party, meanwhile, called for Israel to rethink its policies under investigation. Now, with the March 23 elections in the rearview mirror, Netanyahu—whom Israel’s president has once again tapped to form a government—has issued a fresh statement rejecting the ICC’s authority, stating that Israel will not cooperate with its proceedings.

Israelis’ widespread backlash against the prospect of international prosecution is unfortunate but predictable. Institutions of international justice have a dubious track record when it comes to winning local support. In other countries, they have been met with equally stiff rejection and political manipulation.

In the countries of the former Yugoslavia, 24 years of fraught proceedings at the International Criminal Tribunal for the former Yugoslavia (ICTY) left behind a complex legacy. The ICTY was intended to deter violence, advance justice, and promote accountability, but each of the implicated states to emerge out of the breakup of Yugoslavia instead reacted to the tribunal with historical revisionism, glorified nationalism, and resentment of international justice.

Some countries, such as Serbia and Croatia, at first refused to cooperate with the court—only relenting later, under Western pressure. Even then, the proceedings often played squarely into domestic political machinations. In Israel, past proceedings of international justice have unfolded in a similar way: They are met with noncooperation, leveraged for domestic political causes, and co-opted by hard-line conflict narratives of victimization.

Israel and the Palestinian territories are facing a different institution than did the former Yugoslavia: The ICTY was an ad hoc body set up during full-blown war, while the ICC is a permanent court. The conflicts that prompted investigation are also distinct. Still, the countries of the former Yugoslavia share surprising parallels with Israel in terms of how international legal processes have become entangled with local politics. Today, as Israel is haunted by the specter of prosecution, the Balkan experience can offer clues about what may lie ahead.

International justice is not a mechanism of conflict resolution: Yugoslavia’s wars ended through years of international mediation, negotiation, and heavy-handed diplomacy. Legal proceedings were intended to supplement politics by deterring war crimes, supporting long-term reconciliation efforts, and holding the responsible parties to account.

The ICTY was established in 1993—at the height of the Bosnian War, which had begun a year prior. It was the first war crimes tribunal since the Nuremberg trials. The ICTY’s objective, as stated in the U.N. Security Resolution that created it, was to “put an end to such crimes” and “bring to justice those responsible for them” by providing victims a space to testify about their sufferings. Though the ICTY was established as a temporary institution—with 2010 as a projected end date—its work continued until 2017.

The ICTY was unable to fulfill its first aim: deterring war crimes. By the time the Dayton Accords ended the Bosnian War in 1995, over 100,000 people had been killed, the vast majority Bosniak civilians slain by Bosnian Serb forces and paramilitary groups. This death toll included some of the conflict’s worst massacres, including the Srebrenica genocide. And in 1998 and 1999, over five years after the ICTY’s creation, Serb forces slaughtered another 8,661 Albanian civilians in Kosovo.

As Israel is haunted by the specter of prosecution, the Balkan experience can offer clues about what may lie ahead.

The tribunal proved more successful at promoting retroactive justice and accountability—at least on paper. By 2017, when the ICTY ceased operations, it had indicted 161 individuals, convicted 90, and acquitted 18. But beyond the numbers, the ICTY’s long-term restorative impact on the ground has been troubled at best. In Serbia, Croatia, Bosnia and Herzegovina, and Kosovo, many of those tried at the ICTY have been branded as heroes.

Upon his 2015 early release from a 14-year prison sentence in The Hague, Vladimir Lazarevic, a Serbian general who displaced and killed civilians during the Kosovo War, was promptly hired as a lecturer at Serbia’s military academy—called a “role model” by the country’s defense minister. Two of the most notorious convicted Bosnian Serb war criminals, Radovan Karadzic and Ratko Mladic, who spent years in hiding before being handed over to the court, are lionized in Serbia today; Karadzic was even awarded parliamentary honors in 2016. Many Kosovars consider former Prime Minister Ramush Haradinaj, twice tried and acquitted by the ICTY for war crimes against Serb civilians and others, to be a war hero. In Croatia, thousands attended celebrations for the acquittal of the Croatian generals Ante Gotovina and Mladen Markac, who were tried for the persecution and murder of Serbs in Croatia.

With the public and political glorification of war criminals comes historical revisionism. Though the ICTY convicted both Karadzic and Mladic on counts of genocide, the Bosnian Serb authorities who govern the de facto independent region of Republika Srpska today labor to deny and rewrite historical events, and Serbia’s leaders decline to call it a genocide. International efforts to pass a U.N. Security Council resolution recognizing Srebrenica as genocide in 2015 were blocked by Russia, a staunch supporter of Serbia and Republika Srpska, and in 2018, the Bosnian Serb National Assembly annulled a report acknowledging the genocide.

Today, only 12 percent of Serbs in Serbia believe that genocide occurred in Srebrenica, and only 17 percent acknowledge that mass graves of some 1,000 Kosovo Albanians were found in their country. The Balkan states that delivered suspected war criminals to The Hague seem to believe their historical responsibilities ended there.

These trends toward revisionism and self-victimization defied the ICTY’s goal of establishing “an indisputable historical record, combating denial and helping communities come to terms with their recent history.”

Since the ICTY was established, international justice has developed considerably—though it is still under construction. The International Criminal Tribunal for Rwanda opened in 1995, and the ICC followed in 2002—as a permanent court that, like the tribunals, tries individuals rather than states. This distinguishes the ICC from the International Court of Justice (ICJ), which was founded by the 1945 U.N. Charter and settles disputes between states.

Israel had its first major confrontation with international courts in 2004. In response to a series of Palestinian suicide bombings during the Second Intifada, the Israeli government in 2002 began constructing a barrier between the West Bank and Israel, citing security needs. But critics charged that the wall—whose serpentine route has suffocated and dismembered Palestinian villages—entrenched illegal Israeli land grabs and violated Palestinians’ human rights.

In July 2004, the ICJ issued a nonbinding advisory opinion that the wall violated international law and should be dismantled. Israel—which viewed the proceedings as a politicized assault on its right to self-defense—flatly ignored the court’s request.

Still, some would argue that the nonbinding advisory opinion made Israeli policymakers more accountable at home. In 2004, days ahead of the anticipated ICJ ruling, Israel’s Supreme Court ruled that the government must modify the route of the separation wall to limit its harm to Palestinian civilian life. But as Israeli human rights lawyer Michael Sfard has argued, the Israeli court’s judgment was timed to blunt the impact of the ICJ’s opinion, while providing overall legal approval for the wall. Indeed, the barrier still exists to this day—and has wrought havoc on Palestinian society.

It’s unlikely that Israel will ever regard its own alleged war crimes critically in the future.

Israel has faced international investigations in the intervening years, such as by the U.N. Human Rights Council. The current ICC probe is investigating Israeli settlements in the occupied West Bank and alleged war crimes in Gaza, perpetrated both during the 2014 war and during demonstrations at the Gaza border in recent years.

Although Israel is not a member of the ICC, Israeli authorities have shown some signs of caution in their recent policymaking, perhaps as a result. Netanyahu shied away from displacing Khan al-Ahmar, a Palestinian community in the West Bank, and the Israeli Supreme Court struck down a law intended to legalize Israeli settlements. But these actions mainly offer plausible deniability: They steer Israel away from international prosecution, while maintaining the overall policy course.

Sfard has argued that Israel’s domestic due process mainly obfuscates and enables unfettered decadeslong human rights violations on the ground. After all, since 2004, Israel has only intensified its increasingly permanent grip on the West Bank, even flirting with outright annexation.

It’s unlikely that Israel will ever regard its own alleged war crimes critically in the future. Ninety-two percent of Israeli Jews believed the 2014 Gaza War—part of the ICC’s new probe—was justified at the time.  The Israel Defense Forces, moreover, is consistently the most trusted institution among Israeli Jews. As in the former Yugoslavia, prosecution of Israeli military or political leaders is extremely unlikely to change this view. In response to the ongoing ICC investigation, Israel has declared noncooperation with the court; the outgoing parliament even drafted a bill to prohibit cooperation with the ICC by law.

The ICC will also be investigating Hamas for targeting civilian areas with rockets and using human shields, among other accusations. But in Israel, perception of exclusive legal victimization is pervasive.

In practical terms, the politicization of international courts further burdens the Israeli-Palestinian peace process, which has been on ice for years. Here, its historic broker—the United States—isn’t helping. In 2004, the George W. Bush administration chastised the ICJ for ruling on what it called a “political issue,” legitimizing the U.S.-Israel alliance in defiance of international law.

After the ICC announced its investigation of Israelis and Palestinians, the Biden administration at first echoed the Bush administration’s policy, though it recently reversed the Trump administration’s sanctions against court officials. Still, Palestinians have become deeply mistrustful of the United States as a fair mediator, while right-wing voices in Israel have latched onto the ICC investigation as a reason to avoid a peace process altogether.

The politicization of international courts further burdens the Israeli-Palestinian peace process.

It’s unsurprising, then, that public opinion is skeptical of the prospects for change. A new survey one of us, Dahlia Scheindlin, conducted with Palestinian pollster Khalil Shikaki for the Israeli human rights group B’Tselem found that just 21 percent of Israelis and Palestinians believe the ICC proceedings will cause Israel to restrain policies like settlement expansion. Seventy-one percent of Palestinians and 51 percent of Israelis believed that the ICC will not cause Israel to restrain its actions in the occupied Palestinian territories.

If the survey respondents are correct, the ICC probe—however it plays out—will have little impact on the overall direction of Israeli policy toward Palestinians save for small adaptations at the margins.

At best, the threat of international prosecution of Israeli leaders could revive a sense of urgency in Israel for advancing a negotiated solution with the Palestinians. But achieving one in practice is nearly impossible at present. During Israel’s election campaign, the ICC issue was merely co-opted by political leaders to fling accusations at one another. The investigation has prompted no serious self-criticism in Israel, let alone advanced accountability or future reconciliation.

Despite the fact that international legal proceedings—whether in the former Yugoslavia or in Israel—can have troubling implications for local politics and deter support for international justice, the goals of international courts remain as urgent as ever.

But law will never be practiced in isolation from politics. Local political manipulations overshadowed the ICTY’s quest for justice in the former Yugoslavia, and the ICC’s work in the Palestinian territories is already confronting a similar fate.

Update, April 13, 2021: Several phrases have been inserted that were erroneously omitted from the original published version of this piece due to an editing error.

Dahlia Scheindlin is a political analyst and policy fellow at The Century Foundation. She has advised political campaigns in Israel, the Balkans, and other countries. Twitter: @dahliasc

Garentina Kraja is a Kosovo researcher. She covered Kosovo’s war and its transition as a journalist and served as a foreign-policy and security advisor to Kosovo’s former President Atifete Jahjaga. Twitter: @tinakraja Twitter: @tinakraja