ICC Prosecutor Fatou Bensouda.
(photo credit: REUTERS)
Israel is playing a high stakes game of chicken with International Criminal Court Prosecutor Fatou Bensouda over its preliminary examination into alleged war crimes from the 2014 Gaza War.
Bensouda has recognized a State of Palestine since January and has adamantly defended her position on the issue.
She is not alone with support from UN Secretary General Ban Ki-Moon, the UNGA itself and maybe most importantly, support from the President of the Assembly of State Parties, which governs the ICC.
Jerusalem has rejected this position just as adamantly.
This is an important point as statehood is a prerequisite to gaining entrance to the ICC party and potential intervention.
Moreover, it appears to be moving in the direction of no official cooperation with Bensouda, even as the IDF continues on with its own investigations of alleged war crimes and Israel may, as it has in the past, be using third parties to eventually make its case before Bensouda.
Non-cooperation is a gamble which has worked for Israel in the past with countering the 2009 Goldstone Report and other UN reports, and is Israel’s strategy regarding the UN Human Rights Council McGowan-Davis Report due on June 29, but it may not work this time.
The Goldstone and McGowan-Davis reports emanated from the UNHRC, which has no binding power and can easily be blocked by the US veto at the UN Security Council.
Other than admittedly substantial indirect diplomatic power, the US has no such veto over ICC decisions and cannot even threaten to withdraw funds, as it is not an ICC member.
If US diplomatic power was going to stop Bensouda, one would have thought she would never have recognized Palestine in the first place.
Israel’s only plays if Bensouda opens a full criminal investigation without its cooperation, is an appeal to the ICC judges that she overreached her powers in recognizing Palestine or a diplomatic push to discredit or indirectly pressure her office into dropping the issue before indictments.
All of this signals that Israel may be passing up a case to stake its big fight on complementarity, or the idea that its own investigations are reasonable enough that Bensouda cannot initiate a full criminal investigation or get involved at all.
This is because the ICC is a court of last resort and cannot get involved in a country’s business unless that country is unwilling or unable to self-investigate.
Israel points out in its argument against a State of Palestine that the US and Canada agree with its position.
But if Israel was drawing its line in the sand on whether its investigations are reasonable, it could be trying to rally a larger number of Western democracies around the idea that the ICC should not be second-guessing democracies who have systems for self-investigating, as opposed to dictatorships and developing countries which are really unable to self-investigate.
Such an argument might find many more allies than still trying to fight the Palestine wave.
It is surprising that this may be the strategy unless Israel has concluded that it is too risky too trust that Bensouda and the ICC judges will give Israelis a fair hearing, or that it could pull out an impending (but currently totally unseen) return to a diplomatic process with the Palestinians to sideline the whole issue (the premise being the ICC would not want to upset a successful peace initiative with war crimes allegations that would rile Israel.) Of course, Israel can “plead in the alternative” and try to re-invoke complementarity even once a criminal investigation might be initiated.
But at that point, legally-speaking, Israel’s back is more against the wall, Bensouda is already more committed and the state would already have suffered a significant diplomatic embarrassment.
Of course, knowledgeable sources have said that the ICC Prosecutor is still far from D-Day on Israel-Palestine, and maybe Israel will make more of a case if it really sees the writing on the wall.
But as of now the game is on, and while fighting against Palestine as a state is a knock-out winner if it works, it is also a dangerous game with less room to maneuver.