Palestine’s decision to join the International Criminal Court (ICC) has instigated a furious backlash from Israeli government officials. Such a reaction may not be surprising given that Israel and its allies have consistently reiterated their opposition to an ICC intervention into Palestine. But is a reaction of seemingly unmitigated anti-ICC rhetoric useful for Israel? Will it undermine the Court? On both counts, the answer is almost certainly no.
It is safe to say that states generally don’t like their actions or policies coming under the microscope of the International Criminal Court (ICC). But not every state responds in the same way to its record coming under the judicial scrutiny of the ICC. And some reactions and responses may be more appropriate and useful than others.
There is no one way for states to react to an ICC investigation. When it became apparent that the actions of UK troops in Iraq would come under ICC investigation, British officials responded tersely but maintained public support for the Court and apportioned significant resources to demonstrating that the state had sufficiently investigated and punished British citizens responsible for abuses in Iraq. More recently, when the ICC reported that it was conducting a preliminary investigation into the US military’s use of ‘enhanced interrogation techniques’ in Afghanistan, the US response was to cooly reiterate its policy that the Court did not have jurisdiction over its citizens. In response to the ICC’s potential investigation of alleged crimes in Palestine, Israeli government officials have chosen an altogether different strategy: to question the very existence of the ICC.
After years of seeking to prevent the Palestinian Authority from signing the Rome Statute of the ICC, the Israeli government is undoubtedly and unsurprisingly furious. It is scrambling to get the higher moral and political, if not legal, ground. Most observers seem to believe that the Netanyahu government is afraid of the ICC although divisions exist on the source of that fear. One view is that the government is scared because they know that they committed atrocity crimes in Gaza (and perhaps in the construction of Israeli settlements in occupied territories) and therefore will be targeted by the Court. The other explanation is that the government believes that institutions like the ICC are so biased against Israel that they will inevitably be unfairly targeted. In all likelihood, it is a mixture of both.
Irrespective of the source of the Israeli government’s fear, Israel shifted its strategy from apportioning blame on Mahmoud Abbas and the Palestinian Authority to lashing out at the ICC – and not just for its potential investigation of Palestine. In direct contradiction to the Israeli Foreign Ministry’s position that “Israel has been a long-standing advocate of the Court”, Israeli officials are now bringing into question the very existence of the Court. That will almost certainly be a central theme in the campaign of attack ads President Benjamin Netanyahu plans to unleash on the ICC and its chief Prosecutor, Fatou Bensouda. And it was reflected in comments by Israeli Foreign Minister Avigdor Lieberman who went so far as to declare that the ICC should be out of business altogether
We will demand of our friends in Canada, in Australia and in Germany simply to stop funding it. This body represents no one. It is a political body. There are a quite a few countries – I’ve already taken telephone calls about this – that also think there is no justification for this body’s existence.
Avigdor added that any decision by the ICC to investigate alleged crimes in Palestine was “solely motivated by political anti-Israel considerations” and that Israel would seek to “dismantle this court, a body that represents hypocrisy and gives terror a tailwind.”
For those familiar with the ICC’s brief history, Lieberman’s comments are will sound like the echo of John Bolton, the Bush administration diplomat who publicly rejoiced at his mandate of undermining the Court. During a period of notorious anti-ICC rhetoric and legislation, Bolton’s statements were the most venomous instantiation of American antipathy towards the Court. The former US ambassador to the UN believed that the US should “isolate [the ICC] through our diplomacy, in order to prevent it from acquiring any further legitimacy or resources.” In 2002, the Bush administration took the famous and unprecedented step of ‘un-signing’ the Rome Statute. Bolton called it “the happiest day of my life.”
Lieberman is positioning himself as the ‘John Bolton 2.0’ of international justice. But the US experience demonstrates that this is unlikely to serve Israel’s interests. After investing significant political and legal resources in an attempt to trounce the ICC, US lawmakers ultimately realized that their overzealous anti-ICC mission was counter-productive and that a functioning Court could actually serve Washington’s interests. By 2006 and well before the Obama administration came to power, US Secretary of State Condoleeza Rice admitted that the US’s policies towards the Court was “sort of the same as shooting ourselves in the foot.”
Today, advocates of international justice expect Lieberman and Netanyahu to go ballistic over the ICC. But, if reports are accurate, some within Israel’s Foreign Ministry have advised the government to refrain from publicly attacking the Court and its Prosecutor. The reason seems clear. Calling into question the ICC’s existence will only isolate Israel further, strengthen the resolve of those who believe that Israel has something to hide, and confirm that Palestine should come under the microscope of ICC prosecutors. Israel would be better served by engaging, even in a limited fashion, with ICC investigators and using established procedures to challenge the court’s jurisdiction. Israel could engage with the court by providing it with the evidence it purportedly has of crimes committed by Hamas. It would also be wise to undertake, as Britain has, the necessary preparations to demonstrate that its judiciary has investigated alleged crimes committed by Israeli citizens and argue that it is both able and willing, under the ICC’s principle of complementarity, to prosecute any alleged Israeli perpetrators itself.
For proponents of the ICC and international criminal justice more broadly, there is little reason to despair over another John Bolton-like figure. In no historical account of the Court’s history can Bolton’s fiery rhetoric be said to have fundamentally damaged the institution. Instead, it likely bolstered the ICC’s credibility as an independent institution that didn’t need Washington’s support to function (a closer relationship may bring this into question). Lieberman and Netanyahu’s feisty anti-ICC diatribes may persuade some allies that are already ambivalent to the Court, such as Canada, to fulfill their own threats of ‘consequences’ for Palestine joining the ICC. But it will almost certainly fall on deaf ears elsewhere. Instead, Israel’s fury gives credence to the view that the court is both a deeply relevant institution in international politics and that it is not simply a tool of Western powers. In the long run, the Israeli government’s frenzied reaction will likely bolster, rather than hinder, the court’s reputation.
There is no consensus or study on why states react differently to the ICC’s scrutiny of their actions and policies. But it seems clear that some responses are bound to be wiser – and more effective – than others.