In the court of public opinion, Israel doesn’t have to be guilty; it just has to appear guilty.
Nothing alludes more strongly to such guilt than a statement by the International Criminal Court Chief Prosecutor Fatou Bensouda that she plans to open a war crimes investigation into Israeli activity with respect to Gaza and the settlements.
Bensouda’s announcement was not the first such rumbling of possible war crimes charges against Israeli leaders. It is just the strongest one since the Palestinian Authority began its active pursuit of such a scenario when it signed on to the Rome Statute in 2015.
There are a number of steps that have to take place before any charges are filed. Even once they are filed, legal arguments could be made that the matter should be dropped.
Bensouda herself will not even be present to complete the process, which could take years. Her term ends in June, when she will be replaced by the British attorney and international legal expert Karim Khan.
Half of the battle against the proceedings won’t be fought in the courtroom but in the diplomatic arena, where Israel will pull on its friends to help pressure the court to drop the suit or invalidate its implications.
But each announcement of every twist and turn of the process, let alone the process itself, underscores the already heavily felt belief on the part of the international community that Israel is guilty of war crimes.
The stronger the possibility of a suit, the longer the process lingers, the more that appearance of Israeli guilt is branded into international consciousness.
Israel’s battle for legitimacy, which has always been something of a David against Goliath affair, has now become even more of a mission impossible.
But the problem is not just the continuous branding of Israelis as war criminals at a time when countries like China and Iran are engaged unfettered in atrocities.
The announcement comes at a time when it can least serve the Palestinians and when diplomatic savvy calls for restraint on the part of Prime Minister Benjamin Netanyahu.
Over time, Israelis and Palestinians have accumulated a number of nonviolent tools that are pressure points to force the other side to halt unwanted action.
Palestinian diplomatic warfare against Israel has included the Boycott, Sanctions and Divestment movement, UN resolutions and the ICC.
The PA uses these as pressure levers to halt pending Israeli actions such as annexation, to pressure it to freeze settlement activity, and to accept a two-state solution at the pre-1967 lines.
Israel, in turn, uses settlement building to combat the Palestinian drive for unilateral statehood recognition, to combat terrorist activity and as a pressure point to push the Palestinians to accept a two-state solution that allows Israel to retain large portions of Area C.
WHEN BENSOUDA first announced that she wanted to open an investigation into possible Israeli war crimes in December 2019, including in the settlements, it played well as a defensive wall for Palestinians against pending Israeli plans to annex the settlements.
When the international community spoke of what might happen should Israel cross such a taboo, an ICC war crimes suit was seen as a possible deterrent. It met a strong act with an equally strong act.
But Israel has since suspended its plan to annex West Bank settlements in favor of normalization deals with Arab countries.
The Left would argue that Israeli actions on the ground are tantamount to de facto annexation, so an ICC war crimes threat is still necessary.
For the time being, settlement building is down, and there is no major activity with which to link this particular announcement; actually, annexation is nowhere in the offing.
A war crimes suit threat can also not be used to help push Israel into a peace process for two states at the pre-1967 lines, because at this moment there is no peace process.
Bensouda’s decision to push forward at this time is almost like a hammer coming down before the nail is placed on the piece of wood.
If anything, it empowers the Israeli Right, because it underscores the point it already feels that nothing Israel does is acceptable, short of a complete withdrawal to the pre-1967 lines.
The atmosphere of nothing is acceptable so everything is permissible is part of what made annexation part of the normative discourse in the first place.
But Bensouda’s announcement doesn’t just come at an inopportune moment for the Palestinians; it also comes at a strategically complicated time for Netanyahu.
When the ICC issue initially heated up in 2019, he had the support of former US president Donald Trump, whose administration had already declared that settlement activity is not inconsistent with international law, by way shoring up Israel’s legal right to solidify its hold on portions of the West Bank.
Netanyahu could easily speak of annexation. It was a move that the Trump administration actually supported and that Trump wrote into his peace plan between Israel and the Palestinians.
But already in 2020, Netanyahu committed himself to suspend annexation in favor of deals that have yielded many positive results for Israel and for which he has been nominated for a Nobel Prize.
Secondly, the ICC threat comes in the infancy of the Biden administration, which has a no-tolerance attitude toward settlement activity. So any action Netanyahu would take to expand Jewish building in the West Bank or east Jerusalem would create immediate friction with the US.
While that might gain Netanyahu immediate points with right-wing voters in advance of the March 23 Israeli elections, it would cost him in the arena of diplomatic prowess, which is also critical to his election campaign.
The advancement of the ICC war crimes threat could already be played by his opponents as a mark of failure on his part. Moreover, Netanyahu is one of the likeliest targets of an ICC suit.
So as the process unfolds and Israel takes a battering in the court of public opinion, any public action that Netanyahu might take could also have a boomerang effect.
In short, both he and Israel are up a creek without a paddle.