In an initial response over the weekend, Israel said it had frozen 500 million shekels (more than $125 million) in tax funds collected for the Palestinians. The monthly transfers are a key source of revenue for the cash-strapped Palestinian government. Netanyahu’s government minister for strategic affairs, Yuval Steinitz, said Israel could take even tougher action. “If the Palestinian Authority continues to attack us, I assume we will consider other steps,” he said, without elaborating.
The Palestinian application to the ICC is uncomfortable for Israel. But those who fear it now should have considered the implications before they pushed Abbas into a corner.
In any case, despite the embarrassment Israel is liable to suffer in The Hague, the application is still a nonviolent, political move, whose impact Israel can mitigate greatly if it conducts its own investigation into suspected war crimes. But over all this hovers the question of where the punishments imposed by Israel will lead. Does Israel want to see the PA collapse? Has it taken into account the impact its action will have on the PA’s faltering economy? Revenge and punishment aren’t a policy. And they most certainly aren’t a smart policy.
Emily Schaeffer Omer-Man points out that Israel would have nothing to fear from the ICC if it were more vigilant in investigating and punishing crimes within its own security apparatus:
What is beyond ironic here, and in fact cause for concern, is that the Palestinian bid to the ICC would pose no threat to Israel if the latter were to meet the complementarity requirement under the court’s statute. According to the Rome Statute, state actors over which the court has jurisdiction by virtue of the said state being a party to the treaty, or the complaint having been launched by a state party, may only be prosecuted if it can be shown that the same state is “unwilling or unable” to carry out a genuine investigation and prosecution of the alleged war crime. …
Under the Israeli military justice system the Military Advocate General both counsels the military on the law during operations and decides whether to investigate and indict those accused of violating it after the fact. Moreover, relevant Israeli criminal law does not define offenses that constitute war crimes as such, and thus they are not prosecuted and penalized with the appropriate gravity.
J.J. Goldberg, meanwhile, thinks through what charges Israel might face if the Palestinians’ move succeeds:
Israel would be far more vulnerable to war crimes charges for its settlement policies. Many friends of Israel find it ludicrous that building apartment houses could be considered a war crime, but international law is pretty unambiguous on the question. The legal text is the Fourth Geneva Convention, the international treaty adopted in 1949 in response to the Nazi atrocities. According to Article 49 of the convention, a nation that occupies another nation’s territory in the course of war may not “deport or transfer part of its own civilian population into the territory it occupies.”
Note that there’s noting illegal about one nation occupying another nation’s territory in the course of war. That’s what happens in war. The Fourth Geneva Convention defines how the occupied territory and its population must be treated during the course of the occupation. It says nothing about the fact of occupation itself except that it happens in war. So all the talk you hear about Israel’s “illegal occupation” is simply ignorant. An argument can be made that Israel illegally violates certain of its obligations as the occupying power. That’s what the court case will be about, if it ever reaches the court.
Juan Cole fantasizes about the court indicting Netanyahu:
While it is unlikely that this could happen, Israel’s leadership might not be able to visit most of Europe, which would isolate them and much reduce their influence. The European institutions in Brussels would take an ICC conviction seriously. … Over a third of Israeli trade is with Europe, and technology transfers from Europe are crucial to Israel. It could be kicked out of European scientific and technological organizations, where it presently has courtesy memberships. And Israeli leaders could end up being afraid to visit European capitals lest they be arrested, Pinochet style (even if governments ran interference for them, they could not be sure to escape lawsuits by citizen groups and could not be insulated from activist judges).
The world wouldn’t end for Israeli leaders if they were convicted, as it hasn’t ended for [Sudanese President Omar] al-Bashir. But the consequences would be real and unpleasant, and over time could have a substantial impact.
But Aaron David Miller deflates expectations that Palestine will accomplish much of anything by joining the court:
There are numerous issues relating to whether the Palestinian Authority can be recognized as a state for purposes of presenting charges to the Court; jurisdictional questions; and Palestinian vulnerabilities too that stem from Hamas’s own transgressions and alleged war crimes. And even if these can be overcome, there’s the matter of whether the ICC wants to get drawn into the politics of the Israeli-Palestinian problem. Having publicly indicted roughly three dozen individuals in 12 years, and all of those in Africa for crimes that variously involve willful murder, torture and rape, it would strain the ICC’S credibility should the Court decide to open cases against Israeli military commanders or senior politicians. That the ICC can’t indict the Middle East’s No. 1 war criminal , Bashar Assad, because Syria isn’t an ICC member and Russia would block any UNSC referral of the matter doesn’t do much for the court’s credibility. And prosecutors want to take cases they can win; and it’s by no means clear that the ICC wants to get itself in the middle of the Israeli-Palestinian conflict or that it believes that’s going to enhance its political reputation and credibility by doing so.
The PA’s move, Matthew Waxman adds, “is also very bad for the ICC”:
That Court, which faces major resource and management challenges, is already reeling from the collapse of its case against the Kenyan President and from lack of support among states to enforce its arrest warrants against Sudanese leaders. Palestinian membership will make the United States more hesitant to support the ICC generally, and may push the United States back to actively undermining it. More significantly, it thrusts the ICC into the fiery politics of the world’s most intractable diplomatic problem. There is nothing the ICC can do that will not bring upon itself tremendous criticism, from one side or the other: pursuing cases against Israel will end any U.S. support for the Court and produce another tense situation in which the court’s authority is powerfully resisted, while declining cases will lead to charges that the court is feckless.
Beyond short-term factional politics on both the Palestinian and Israeli sides, the effect of which is to drive them farther apart in seeking long-term solutions, there are no winners in this move.
Yishai Schwartz argues that Palestine’s ICC accession will help Netanyahu, and what’s more, Abbas knows it:
So even though he might personally prefer Livni to Bibi, he must also recognize that politically, a right-wing Israeli government is a diplomatic triumph. International support for Palestinians plummets when Israel is led by leftist leaders who make concrete offers. Palestinian rejections of Barak’s and Olmert’s offers—however reasonable or unreasonable—contributed to a public image of the Palestinians as unserious and recalcitrant. By contrast, an Israeli government led by the confrontational Netanyahu and staffed by figures explicitly opposed to Palestinian statehood is a gift to Palestinians. In the years since Netanyahu assumed power, Europe has grown increasingly fed up with Israel—and as demonstrated by France and Luxemburg’s Security Council votes in favor of Palestine—have completely embraced Palestinian positions on the major issues.