On the surface, it might be to the advantage of the Palestinians if International Criminal Court prosecutor Fatou Bensouda goes ahead with her warning to Israel that she may launch a full-scale investigation into last year's Gaza war based only on Palestinian charges. Bensouda said that if Israel did not give the ICC the information it is requesting, she might be forced to find it elsewhere or might be compelled to go with just one side of the story. But should that happen, Israel could always cry foul and claim that the results were one-sided and that the investigation was impartial. In the end, this is Israel's choice. It seems that it is depending on its own internal investigation, betting that it will be reasonable enough. Israel could be trying to rally countries around the idea that the ICC should not be second-guessing its self-described democratic system which Israel claims can honestly and fairly self-investigate as opposed to developing countries which are unable to self-investigate properly. This may be Israel's strategy if it has concluded that it is too risky to trust that Bensouda and the ICC judges will give it a fair hearing. How, though, can Israel be trusted to come up with a valid and credible investigation after it killed more than 2,200 Palestinians, including hundreds of civilians? How will it be able to explain, without independent verification, its targeting of UN schools used as shelters which killed dozens of people and injured more than 200? How, also, can Israel depend on West European countries which have passed several non-binding resolutions calling for a Palestinian state? Or the US, whose goal of a peace deal has been shattered by Israel? Non-cooperation is a gamble which might have worked for Israel in the past, including its countering of the 2009 Goldstone Report and other UN reports. The difference, however, is that the Goldstone Report emanated from the UNHRC, which has no binding power and can easily be blocked by a US veto at the UN Security Council. Other than admittedly substantial indirect diplomatic power, the US has no such veto over ICC decisions and cannot even threaten to withdraw funds, as it is not an ICC member. To sidestep the ICC, Israel could re-enter peace talks with the Palestinians, the premise being that the ICC would not want to upset a peace initiative with war crimes allegations that would anger Israel. But where is this peace process; where is this peace deal? The guidelines of the new Israeli government narrowly approved on Thursday make no mention of a two-state solution to the conflict. Talks collapsed in April last year and Benjamin Netanyahu hammered in the last nail by rejecting a Palestinian state as long as he's around. Despite Barack Obama's plea, reviving the peace process is unlikely to be a priority for this new cabinet which features several ministers bent on expanding settlement construction on land the Palestinians want for a future state. Although Palestinian President Mahmoud Abbas has not initiated a formal complaint, it is the Palestinians who accepted the court's jurisdiction in mid-January and officially joined the ICC on April 1 in hopes of prosecuting Israel for its war crimes and crimes against humanity during the Gaza conflict. So, they are certain to provide Bensouda with information. It's a different matter on the Israeli side which says that the ICC is the problem, not the solution. Bensouda's remarks suggest that she is pushing forward more forcefully than anticipated with her preliminary investigation. Consequently, Israel will soon have to make a decision to cooperate with the ICC or not.
