After 20 years of fighting war crimes and 11 years trying to keep the International Criminal Court out of its hair, the internal fight in Israel on how to address the controversy reached its climax this week.
Israel decided to respond to ICC Prosecutor Fatou Bensouda’s opening a war crimes probe by doubling down on its argument that the court lacks jurisdiction to investigate Israelis.
The decision followed an extended debate between several relevant ministries and the IDF.
Sources indicate that the major camps within Israel are the “isolate the ICC” camp; “cooperate with the ICC” camp; reject formal cooperation with the ICC but quietly dialogue informally; and a mix of those strategies.
Even before Israel’s announced decision, there were indications that the “isolate” camp was the strongest.
Despite this, Israel has historically tried to explore multiple paths at the same time – and it is still possible that Jerusalem may quietly explore informal dialogue even as it publicly refuses to cooperate.
Even Israel’s response that it refuses to cooperate is a slightly less isolationist stance than if it had simply ignored the ICC and not responded at all.
Below are seven challenges that Israel’s leaders have been and will continue to wrestle with:
1. Outgoing prosecutor Bensouda versus incoming prosecutor Karim Khan
The decision to go after Israelis was made by lame-duck Bensouda, who leaves office in mid-June. There was hesitation on whether any long-term decision should be taken now, which cannot be revisited once Israel learns more on where Khan stands.
Moreover, since ICC probes move slowly, the April 9 deadline could have been viewed as mostly meaningless – and could be reset once Khan takes office.
Some hope that they can even convince the court to just push off the deadline until Khan’s term, depending on whether one sees Khan as better, worse, or no change for Israel.
Some believe he is better because of his background defending alleged Kenyan war criminals, and his criticism of Bensouda as taking on some cases that she should have passed on.
But others believe he would never have gotten the support of the human rights community and various states that supported him if he was not part of the general UN-system consensus (not to be confused with Israeli allies), which views Israel’s settlements as illegal and views some or many aspects of IDF conduct with the Palestinians as problematic.
Though the decision for now was to refuse cooperation and reference the ICC’s lack of jurisdiction, Israel could still revisit its approach once Khan takes office.
2. The speed of Bensouda's decision to open the war crimes probe
How to view Khan can be determined by how to view Bensouda’s lightning-fast decision to open the full war crimes probe. After a five-year debate on whether to go after Israel, Bensouda decided in December 2019 to make the move. However, due to political sensitivities, she asked for the ICC Pre-Trial Chamber’s endorsement.
She received the endorsement she wanted, but not until February. Given that she knew Khan would take over within months, many expected her to leave the final decision to him.
That Bensouda decided to go after Israel only a month after receiving the endorsement, thus forcing Khan’s hand, has led to a debate on whether he was onboard with the decision, and maybe even favored it so it could be laid at her feet, or whether she surprised him, to push him in the direction she wanted.
Intelligence about Khan’s true views is limited, and he has kept a low profile since his appointment, making a real analysis difficult on what he will do.
Waiting for Khan could have been buying time, which Israel has done well until now, considering that the ICC has taken no action yet on a war that happened almost seven years ago.
The decision not to wait for him could again be reset once he is in the picture.
3. The ICC Pre-Trial Chamber's 2-1 split decision
One source of optimism that Israel can fend off the ICC probe before it leads to arrest warrants or any other consequences is that the February decision endorsing the probe was lukewarm.
The decision was split 2-1, with a vehement and detailed dissent.
Some officials think this dissent is a road map for convincing Khan to drop the case, or for an individual Israeli to later appeal to the ICC Appeals Chamber.
4. Burned dialogue
Some officials who worked at an informal dialogue with the ICC dating back to the 2008-2009 Gaza war and the Goldstone Report – as well as with a spike since the 2015 preliminary probe of the 2014 Gaza war started – are frustrated by how completely Bensouda ruled for the Palestinians.
While the ICC Pre-Trial Chamber threw Israel some bones saying it was not deciding the political status of “Palestine” or the diplomatic status of the Oslo Accords, some pro-dialogue officials were very disheartened that the judges in the majority seemed to adopt the UN’s general favoring of the Palestinians’ positions on a variety of issues.
Unlike the UN Human Rights Council, Israel allowed the prosecutor’s staff to visit Israel in 2016 to advance understanding.
Having been burned from years of informal dialogue, some officials are concerned that this may be a dead end.
Still, Israel has shown it can be very effective using third parties – former Israeli officials, international jurists-supporters of Israel, or allied states – to dialogue, without formally legitimizing the ICC probe.
Whether Israel decides to pursue this track under the radar remains to be seen.
5. US sanctions removal undermines diplomatic options
While the informal dialogue option looks weak, the diplomatic-pressure option just got weaker.
The Biden administration had maintained Trump-era sanctions on the ICC for nearly three months, but just recently removed them.
Washington still disagrees with the ICC on its probe of American forces in Afghanistan and its probe of Israelis. But removing sanctions signals that it is not willing to go to the mat or risk harming the court as part of this disagreement.
Israel does have other allies in Europe and elsewhere who are big funders of the ICC, and who Jerusalem hopes would consider withdrawing funding to apply pressure.
Yet it is far from certain that their sympathy for Israel would lead to such diplomatic hardball. It is far more likely that if the ICC were to seek to arrest specific Israelis, those countries would inform Israel in advance to avoid unnecessary friction and embarrassing situations.
But that does not stop the court’s charging ahead as much as it may mitigate some of the damage.
6. IDF versus settlements
Another approach is to separate the IDF and the settlements as ICC issues.
There is little optimism that informal dialogue will stop the court from going after the settlements, which Israel views as legal, or as part of a general diplomatic dispute with the Palestinians.
Since it has not probed them, it can therefore not demand that the ICC bar itself from involvement, based on the complementarity principle that does not allow the court to intervene where a state has probed itself.
However, many Israeli legal officials think there is a strong chance that the ICC can be convinced to drop any cases against the IDF based on the more than 30 criminal probes and over 500 initial probes that the military’s legal division undertook regarding the 2014 war.
The same can be said regarding the 2018 Gaza border conflict, in which the IDF has probed, indicted and convicted several soldiers.
So there could be informal dialogue regarding the IDF, while trying to use diplomatic pressure regarding the settlements issue.
7. Settlements, peace negotiations and Israeli-Palestinian elections
Some Israeli officials oppose any new peace process with the Palestinians at a time when Washington is not even pressing the issue.
However, other officials say that Jerusalem’s last and best hope to block an ICC probe of the settlements is renewed negotiations.
This issue is still up in the air and will likely be influenced by who is prime minister – if and when something concrete relating to the settlements comes to a head.
The court is duty-bound to consider “the interests of justice” before it decides whether to indict anyone.