The Real Problem Israel sees with the ICC Investigation

The ICC (International Criminal Court), an independent judicial organization, issued last Friday a ruling that would permit the start of an investigating procedure against Israel (and Hamas), for possible war crimes.

The news caused an outcry in Israel, calling the ICC biased, Anti-Semitic (of course) while questioning its authority to perform such an investigation at all. And while some are claiming the investigation is not justified, because Israel does not commit war crimes, most of the complaints and anger were directed at the decision that the ICC has jurisdiction over the Occupied Territories.

 The ICC judges made it very clear that the ruling does not constitute a de facto or de jure recognition of the Statehood of Palestine, but the ICC does have jurisdiction in the West Bank and Gaza because Palestine is a member of the Rome Accords (the basis of the ICC). The decision does place the territories in a status distinctly separate from Israel, which of course Israel would want to avoid at all cost, because of the political implications. The ICC cannot investigate Israel’s actions within Israel, because Israel is not a member of the ICC and thus if the Occupied Territories are part of Israel, events there cannot be investigated by the ICC.

But the argument often made by Israel that “real” atrocities committed by Iraq, Syria, China and others should be investigated instead of Israel’s behavior in the Occupied Territories becomes awkward, because those countries (where indeed atrocities are a daily occurrence) are not members of the ICC and thus, according to its statute, cannot be investigated. All Israel appears to be doing is trying hide from its actions from the ICC, by claiming the Occupied Territories are part of Israel and thus the ICC does not have jurisdiction.

While it may be disputed if Palestine is indeed a State, maybe it should be analyzed why Palestine is not (yet) a State, 72 years after the international community (the UN) decided on the formation of two States in the area, the main issue here at least for the ICC, is not merely the legal status of the Occupied Territories and Gaza, but if War Crimes were committed by Israel and by Hamas (in the Gaza Strip) in what is called Palestine.

Furthermore, the ruling only stipulates that the Prosecutor may now evaluate if an investigation into possible war crimes should be launched.  There still is the very real possibility that in the end the court will decide that there are no grounds for an investigation, either because war crimes were not committed, or the judicial system in Israel (both the civilian as well as the military) are considered able and capable of dealing with instances of war crimes. And the process has proven in most cases to be a lengthy one so any outcries that Israel will protect its soldiers and its decision makers against the wrath of the ICC are premature and irrelevant at this point.

The screams of anti-Semitism are just as ridiculous and pathetic and have no basis in reality. People like Netanyahu and Erdan (the Israeli Ambassador to the United States as well as to the UN), are always very quick to use anti-Semitism (and the holocaust) to dismiss or condemn any and all criticism of Israel’s actions and they don’t realize it isn’t working anymore. Anti-Semitism is a serious problem and it appears to increase in the past couple of years, either as a result of Israeli actions and politics, or as part of a general trend of xenophobia that engulfs both Western Europe and the U.S.  However, the unrelenting use of Israel and its leaders of anti-Semitism in response to anything and everything they hear or see in the world they do not like, has made people unresponsive to all charges of anti-Semitism and tend to dismiss them as empty Israeli allegations. The worrisome result is of course, that real instances of anti-Semitism are often also looked upon as irrelevant and ‘more of the same”.

But what is the real reason Israel is so upset about the possibility that its actions (over the past six years) will be probed and investigated? It is understandable that the simple fact that a country is being investigated for such horrors as war crimes is not easy to digest, but neither is the continued and prolonged suspicion of having committed such crimes. Isn’t the preferred alternative, in the situation as it has arisen (for whatever reason) to agree to and collaborate with an investigation that undoubtedly will result in exoneration of Israel and its armed forces, so that the world will see that the allegations were unfounded, and Israel will be able to use the results of the investigation to show anyone trying to besmirch its reputation that there is no basis for their accusations.

Or is Israel worried that things may come to light that it would prefer to remain hidden? While the often used argument about Israel’s most “humane” army (there is no such thing), are rather absurd, I cannot believe the Israeli army, which is an army of the people, with mandatory conscription, would engage in war crimes, not during its wars and not in other military actions no matter how difficult the situation. (I have a son in the Israeli army and my daughters also served).

Lately, an Israeli organization of released soldiers has been in the news (again) for spreading lies about Israeli military actions. The organization “Breaking the Silence” uses the testimonies of released combat soldiers to expose the behavior as Israel as an occupying power, with all its problematic aspects, including and in particular, the interactions with the local population. And while these testimonials are sometimes very difficult to hear and worrisome, the comparison of those actions with war crimes would be ludicrous and not plausible or convincing. Breaking the Silence is looked upon by the Israeli government as an anti-Israeli organization, creating a bad name in the world for the Jewish state, but the fact that such an organization exists, and is allowed (efforts to declare the organization as illegal have led nowhere), shows the strength of the Israeli system and indicates that war crimes would not be tolerated here and suspicions will be dealt with by the legal system.

The real reason the Israeli government is reeling against the ICC decision lies with the fact that part of the request by the ICC Chief Prosecutor Fatou Bensouda, includes investigation of the settlement activity in the Occupied Territories, which, while the chances it will reveal war crimes is zero, does put the focus on the Occupation, which the Israeli government really does not need. And even if the question of Palestinian sovereignty is not being addressed, the Two-State solution (creating a Palestinian State in part of the West Bank) will surely be revived as a result of the investigation of settlement activity.

Thus, the reactions of the Israeli government must (again) be marked as political only, and while the ICC decision is a major event and cannot be dismissed out of hand, it may unwittingly be instrumental in (finally) solving the issue of the occupation. It is shameful that in order to divert the attention from these political matters, anti-Semitism and the Holocaust are brought up but the Israeli government is far from being free of shameful behavior. 

 I hope you found this article interesting and I welcome any comments you may have.

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