We were disappointed but not surprised by the decision of the chief prosecutor of the International Criminal Court to investigate Israel and the Palestinians for possible “war crimes” over their respective actions in Gaza, East Jerusalem and the West Bank beginning from June 13, 2014 to the present. The ICC was created in 1998 when some 123 nations signed onto the Treaty of Rome. The United States and Israel signed the treaty but never ratified it and are not legally bound by its decisions. However, those nations that did ratify are bound to abide by them, which could create difficulties for American and Israel leaders who travel abroad.
Although couched in seemingly even-handed terms, the decision is actually an outgrowth of a complaint lodged by the Palestinian Authority in 2014 against Israel primarily based on the establishment of Israeli settlements which were claimed to be “war crimes” as a matter of law. By declaring that the ICC would investigate that claim the Court is saying that it believes that it has legal merit. So no one should be lulled into the belief that geopolitics is not in play here. Indeed, this development exemplifies Secretary of State Pompeo’s caution that peace in the Middle East will not be a function of abstract notions of justice, but by the result of hard negotiations as has traditionally been the way territorial disputes are resolved outside of war.
Indeed, the Palestinians are transparent about this and loathe to negotiate with an Israel that has enormous leverage by virtue of its enhanced status in the world as a military and economic superpower.
Significantly, although the chief prosecutor announced that she believed the ICC has jurisdiction to proceed with the investigation, she also requested a ruling by the ICC’s pre-trial office to decide the issue of Palestinian standing before the court; only states can initiate cases to the ICC and then only concerning matters involving territory they control. She said that in her opinion, in these regards the Palestinian Authority constitutes a “state” since it is recognized as an ‘observer member” by the UN and is in “control” of East Jerusalem, Gaza and the West Bank by virtue of multiple UN resolutions that speak of them as “occupied Palestinian territory.”
Most will recall the strained legal and political legerdemain that resulted in those recognitions. The ICC prosecutor is plainly intent on implementing the Palestinian narrative. And the international anti-Israel pile-on will doubtless continue. How effective it will be will depend on the continued level of support from the United States. Those who are concerned about Israel should keep that in mind, regardless of political stripe.