How Israel stands to lose at the ICC, without a single trial taking place

See also UN chief: State of Palestine will join ICC on April 1

The devastating prospects of Palestine joining the International Criminal Court has less to do with the chances of prosecution of soldiers, and more to do with the impact it will have on Israel’s precarious international image.

By Daniella Peled, HAARETZ

“We will not allow Israeli soldiers and officers to be dragged to [the International Criminal Court in] The Hague,” Prime Minister Benjamin Netanyahu told his cabinet this week. While it suits his scare-mongering to play on the Jewish state’s emotional link with its army, the chances of any of the nation’s children ever ending up in front of an international court are vanishingly small.

This doesn’t detract from the fact that Palestine joining the ICC is a devastating prospect. Its significance, however, has little to do with the likelihood of any actual prosecution.

Confusion, disinformation and – in the case of senior Israeli politicians – all-out hysteria has surrounded the Palestinian decision to sign the Rome Statute, the 2002 document that created the ICC. International humanitarian law, codified in the Geneva Conventions, has established extremely complex rules for the conduct of war and the Rome Statute enshrines the concept of “command responsibility” – that leaders can be held responsible if they fail to prevent their subordinates from committing crimes. Activists and pundits like to bandy about accusations of war crimes, but the ICC makes legal, not moral, judgements.

 

From initial reports by human rights groups, there may indeed be a case for levelling war-crime charges at Israel for some of the incidents in last summer’s conflict in the Gaza Strip, for instance. But war crimes trials can be highly technical affairs. Israel can also draw on international law to make a strong case in its own defense regarding proportionality and argue that they did not intentionally target non-combatants (the Palestinian militant groups, who boasted of targeting civilians, are on much more shaky ground).

Many other factors militate against the chances of Israeli citizens appearing in front of the court.

One of the central principles of international justice is that the threat of prosecution can help prevent atrocities. But with few and notable exceptions – the tribunals in Yugoslavia, Rwanda and Sierra Leone in particular, which were not part of the ICC – it has had only limited success in bringing perpetrators to trial and delivering justice for victims.

In fact, the ICC has so far only managed to convict two people – Thomas Lubanga Dyilo and Germain Katanga, both Congolese warlords. The process of delivering an indictment is exceptionally convoluted. It took a full five years from the opening of the investigation until Lubanga’s case even came to court, and a further three years until his conviction.

International justice processes are strongly influenced by security and economic interests that go far beyond the obligations laid out in the Rome Statute. Jerusalem will have noted how one of the ICC’s most high-profile cases to date – against Kenyan President Uhuru Kenyatta – recently collapsed in disarray. Kenyatta had faced charges of crimes against humanity in relation to the bloodshed that followed the disputed presidential election of December 2007, but prosecutors said witness harassment and consistent obstruction by the Kenyan government fatally undermined their investigations. They were also hampered by international reluctance to pressure the Kenyan government, seen as a crucial ally in the war on terror in east Africa.

The ICC can’t make arrests itself, and has failed to detain high-profile figures such as Sudanese President Omar al-Bashir, charged with genocide in Darfur, and the African Union – which includes 34 ICC member states – has refused to deliver him.

The ICC is a court of last resort, and the prosecutor can only launch a preliminary examination (followed by a full criminal investigation) if Israel proves “unwilling or unable” to investigate itself.

Israel could plausibly argue it had the ability and will to investigate its own alleged crimes – there are 13 investigations into Operation Protective Edge already underway – although its record of military investigation has been accused of falling far short of international legal standards. (NONSENSE)

The occupation, however, could be put on trial. Jurists and international justice aficionados will happily dissect legal minutiae on this issue for years to come. Israel will be the test case, and this process will roll on and on, sucking all the oxygen out of Israel’s strategies for public diplomacy (while the Palestinian bid for recognition as a state will gain unstoppable momentum).

In any case, ICC prosecutor Fatou Bensouda is well aware of the implications of taking on an Israel-Palestine caseload. She will likely baulk at launching an investigation that would consume the court’s efforts entirely and cause added problems to a body that is already struggling with international funding and support.

But none of this matters very much at all. The mere prospect of an investigation by such a prestigious body serves as the ultimate delegitimisation, Jerusalem’s current bugbear. Unlike the United Nations, whose report on the summer’s war is expected to be devastating, the ICC cannot be accused of having an anti-Israel agenda. After all, it has so far only brought African cases to trial.

So why have Israeli diplomats been describing the ICC bid as “Armageddon” and “the doomsday option,” the sort of language usually reserved for the Iranian nuclear project (a more plausible existential threat)? It’s because they lack the tools to fight it. Just like the boycott, divestment and sanctions movement, which is unlikely to have any real effect on Israel’s economy, the real impact of the ICC move will be on Israel’s already precarious international image. Despite internal battles on the nature of its democracy, Israel still very much wants to see itself as part of the family of nations, not a rogue state subject to such international censure.

The Zionist dream was about the Jews defending themselves. Israel is now permanently on the defensive, in a forum where its hard power no longer has much force.

Daniella Peled is editor of the Institute for War and Peace Reporting and has written widely from across the Middle East and Afghanistan.

January 7, 2015 | 12 Comments »

Subscribe to Israpundit Daily Digest

Leave a Reply

12 Comments / 12 Comments

  1. Haaretz and Peled’s smile won’t last too long. Jews will overcome self-destructive leftist antisemitic Jews.

  2. mar55 Said:

    I do not expect justice for Israel.

    Israel will unlikely participate.
    mar55 Said:

    It will only be
    another tool to keep Israel on the defensive. The more Israel enemies succeed in keeping Israel involved with the time consuming task of defending itself the less time Israel have to commit to Israeli issues relating to its population.

    In spite of all this Israel is doing well while most on the other side are killing each other and going nowhere fast. Lots of doom sayers whose predictions have not panned out as damaging Israel…. forget about images…. the more the euros chat rhetoric the more they buy from Israel and beat a path to Israels tech door.

    mar55 Said:

    Israel ought to be considered a Jewish Country.

    Its up to Israel to decide what it considers itself first.

  3. @ bernard ross:
    Thank you Bernard. What I’m concerned about is not the letter of the law.If they are as neutral as the UN and as corrupt as UNHRC I do not expect justice for Israel. They will be only
    another tool to keep Israel on the defensive. The more Israel enemies succeed in keeping Israel with the time consuming task of defending itself the less time Israel have to commit to Israeli issues relating to its population. Israel for the Jews.
    Just like Spain is considered a Catholic country. Israel ought to be considered a Jewish Country. Israel without Zionism has no reason for its existence.

  4. @ bernard ross:
    Thank you Bernard. What I’m concerned about is not the letter of the law.If they are as neutral as the UN and as corrupt as UNHRC I do not expect justice for Israel. It will only be
    another tool to keep Israel on the defensive. The more Israel enemies succeed in keeping Israel involved with the time consuming task of defending itself the less time Israel have to commit to Israeli issues relating to its population. Israel for the Jews.
    Just like Spain is considered a Catholic country. Israel ought to be considered a Jewish Country. Israel without Zionism has no reason for its existence.

  5. mar55 Said:

    Who is going to prosecute the PA assassins who murder in cold blood their population, their children

    I dont care about them
    mar55 Said:

    and without hesitation sneak into Israel and murder our own children?

    this is the responsibility of the IDF and GOI and the ICC is irrelevant as Israel is not a member.
    mar55 Said:

    Acceptance in the ICC means the ones causing the victimization, are claiming to be the victim.

    Acceptance means that the PA will be bound by ICC rules but not Israel becuase Israel has not ratified the treaty
    mar55 Said:

    How neutral can
    the ICC when in spite of the international war against the west the jihadists are conducting; the ICC accepts their application?

    application acceptance does not affect neutrality but I believe that the ICC will be as neutral as the UN. it will be like the UNHRC but with less authority because Israel is a UN member but not an ICC member.
    I suspect that the PA application has more to do with their war with hamas and controlling gaza. Note that hamas is adamantly against their application, knowing it is them who may lose money and go to jail if brought to the ICC Also, if the unity gov is a fact then PA will be responsible to arrest hamas members charged. I believe that the PA is complicit, along with egypt and gulf monarchies in further leashing and weakening hamas, bringing it to heel.

  6. This morning WSJ.
    http://www.wsj.com/articles/palestinians-to-join-international-criminal-court-1420607546?mobile=y&mg=reno64-wsj
    Who is going to prosecute the PA assassins who murder in cold blood their population, their children and without hesitation sneak into Israel and murder our own children?
    Acceptance in the ICC means the ones causing the victimization, are claiming to be the victim. How neutral can
    the ICC when in spite of the international war against the west the jihadists are conducting; the ICC accepts their application?
    BR. Please explain how does this travesty works?

  7. But none of this matters very much at all. The mere prospect of an investigation by such a prestigious body serves as the ultimate delegitimisation,

    I always wonder if a completely inexperienced writer like myself could make big bucks writing for rags like this. I am encouraged to see that complet nincompoops are offered a space at haaretz. LOL, there is no longer any prestigious body connected with the UN or the multi laterals. Their proclivity to bias and bribery over the last decades have rendered them a laughingstock except to fools and the dishonest. Which is Peled?

    Jerusalem’s current bugbear. Unlike the United Nations, whose report on the summer’s war is expected to be devastating, the ICC cannot be accused of having an anti-Israel agenda. After all, it has so far only brought African cases to trial.

    a basic course in logic would help Peled to make more accurate analyses. The ICC has only been testing its ludicrous wig powdery on the easily blackmailed.

    Why does the disingenous Peled expect the UN report to be devastating, does she expect bias or does she assume that Israel is a war criminal?

  8. has less to do with the chances of prosecution of soldiers, and more to do with the impact it will have on Israel’s precarious international image.
    By Daniella Peled, HAARETZ

    LOL….. this intellectually bankrupt parroting leftist clone does what every leftist has to do these days: whine incessantly about the tribulations of a a future which never arrives. They have always been wrong in the past and present so the future is all they have left because no one can yet prove they are wrong until it arrives and they are once more proven wrong….. they hope that everyone will forget by then and they would have pocketed their profits in false fame and kudos. The german owned haaretz paper byline should be the first harbinger of the unsurprising content of one of their op eds. In short a hot air long winded bag of bubkiss.

  9. (continued)They should not be able to relocate from J&S into Israel. If it was a different country perhaps they can be granted full citizenship so long as they meet the conditions such as army service or if that proves un-workable which is for sure, resolve the issue, permanantly. Such a second Jewish State can compete with Israel for the best and brightest in medicine, engineering, hi tech enterprises and so on. It will keep Israel on her toes. Why not two Jewish States? If that is not acceptable to the world, plan for the third Jewish State and so on.

  10. This entire effort to brand Israel and by extension The Jews as criminals of one type or variety, is a charade contingent upon centuries of conditioning which have indoctrinated Jews to feel guilty about anything and everything. Gentiles like to keep Jews anxious and off balance, it is entertaining for them.

    For instance, The Irish Parliament ‘debated’ the latest Gaza war. One minister who can be viewed on you tube grilling the Israeli Ambassador to Ireland in the most undignified way, stated that here he had a letter by concerned Israeli elites who were condemning Israel’s ‘repugnant conduct’ so therefore “no one is going to accuse me of anti-semetism”. Of course he is anti-shemetic and he knows it. He used the letter signed by leftist Israeli activists like Amos Oz and Grossman to get a legitimacy which would have been lacking should such a letter not be readily available. So, these people are enemies to the state, clear and simple.

    Since we are going to be castigated, put on trial, vilified, assaulted, battered and murdered in cold blood anyway, may as well perform the necessary measures for maintaining a vibrant and viable state.

    Oslo was a painful lesson, especially those of us who insisted it was an error from day one. ‘Nevertheless it can not and must not be prolonged nor repeated.’

    Oslo is NULL and VOID and everyone knows it but the Court Jews and their seemingly endless supply of useful idiots and minyons. Excommunicate them.

    It turns out that the so-called settlements, which were begun by Labor, to their credit are crucial to the survival of Israel and should be declared such up to and including annexation of those areas in Judea and Samaria which will always remain part of Israel. What is that. All of Judea and Samaria. On the other hand, this move will cause enormous political and other problems, so I have another solution and You’ve heard it here for the first time that I know of. Create a second independant Jewish State of Judea and Samaria. Keep Israel out of it. Of course The UN won’t recognize it, but who cares. Israel will. Those are the kind of friends you need.

    I respect but fundamentally disagree with Caroline Glick with regard to offering Israeli citizenship to the arab residents of Judea and Samaria. They should not be able to