Israel and the ICC

The decision by the chief prosecutor of the International Criminal Court, Fatou Bensouda, to open 'a preliminary examination into the situation in Palestine' could have a concrete political impact in Israel/Palestine, but not because the ICC will end up charging officials for carrying out war crimes.

The ICC has yet to address any violations carried out by Western liberal states. Simply put, the geography of the ICC's investigations – from Côte d'Ivoire to Uganda – both reflects and reproduces an old colonial frame of justice. Even within this blinkered framework, the court's success rate has not been particularly impressive: in its 12 years of existence, the ICC has carried out 21 investigations; only two people have been convicted.

Given that record, why has Bensouda’s announcement provoked such outrage in the Israeli government? Binyamin Netanyahu condemned 'the absurd decision of the ICC prosecutor to ignore international law and agreements under which Palestinians don’t have a state and can only get one through direct negotiations with Israel'. The foreign minister, Avigdor Lieberman, announced that Israel would take all necessary measures to dismantle the ICC. (Israel signed the 1998 Rome Statute but has so far refused to become a party to the treaty.)

Netanyahu and Lieberman can't really be worried about Israeli officials being prosecuted. If they are apprehensive, it's because even the ICC's preliminary examination may change the way the question of Palestine is perceived, framing it in terms of human rights, international law and war crimes, with the potential to produce a historical narrative very different from the hegemonic Zionist one.

Irrespective of whether the ICC's examination leads to a full-blown investigation, it already raises some crucial questions. Who is the victim – a particularly charged category given the two peoples' history – and who is the perpetrator? Can the displacement and ethnic cleansing of indigenous people be legal? Which kinds of violence can be considered legitimate and which illegitimate?

Simply asking these questions is perceived to endanger the dominant version of history, which is why the Israeli government and other Zionist organisations, such as NGO Monitor, have been so vitriolic in their responses to Bensouda. When Netanyahu says 'no state, no standing, no case', he is less worried about specific charges that could be brought against Israeli officials than about an examination and reinterpretation of Israel’s colonial practices in Palestine.