How Israel's attacks against the ICC impact legal accountability

Last month, a joint investigation by The Guardian, +972, and Local Call magazine revealed Israel spied, intimidated, and allegedly threatened lawyers at the International Criminal Court (ICC) to disrupt probes into Israel’s purported war crimes.

Israel’s surveillance and espionage campaigns against other countries — and even its allies — are well-documented, but legal and human rights experts say they are still stunned by how brazen Israel’s tactics were, specifically in threatening the former prosecutor Fatou Bensouda and her family, showing up at her doorstep with an envelope stuffed with cash.

“This shows that Israel rightly feels it can do whatever it wants, and that ultimately, because Washington has its back, it need never fear consequences,” Mouin Rabbani, a Palestinian-Dutch analyst told The New Arab.

"It makes you question just how much more the ICC could have done, but perhaps decided against"

Former Human Rights Watch director, Kenneth Roth, wrote in The Guardian, the allegations prove Israel is a “lawless regime.”

“The idea that Israel would just overtly attack an international justice institution [is] surprising,” Roth told The New Arab.

The revelations not only shocked but sparked international condemnation and action, with Dutch MPs calling on their government to launch an inquiry into the allegations.

Yet the United States was relatively silent on the report’s findings. State Department spokesperson, Matt Miller, addressed an Al Arabiya reporter’s query on the subject saying President Joe Biden’s administration hasn’t verified the claims while noting the U.S. would oppose any threats against public officials.

More broadly, the Republican-controlled U.S. House of Representatives voted in favour of sanctioning the ICC in response to the court’s current prosecutor, Karim Khan, seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister, Yoav Gallant, for alleged war crimes in Gaza.

“They're emboldening this gangster behaviour because they're part of the system,” Palestinian lawyer Diana Buttu said of the US lawmakers’ vote.

While Biden has condemned the ICC’s arrest warrants, his administration doesn’t support sanctioning the court as “the right approach”, according to US National Security Council spokesperson John Kirby.

Yet sanctions or not, analysts like Rabbani say the American leadership’s response to Israel is the same across the political divide.

“It doesn't matter if the next president is going to be [Donald] Trump, Biden, or someone else,” Rabbani said. “These are kind of institutional policies reflecting the consensus of the US political elite.”

Is ICC accountability far-fetched?

Legal professionals expressed the allegations could constitute obstructing justice under Article 70 of the ICC’s founding statute — a criminal offence. Whether the court acts on this is difficult to ascertain, however.

The ICC has been accused of dragging its feet when it comes to investigating Israeli war crimes against Palestinians, but Israel’s alleged near-decade-long campaign against it may explain why.

“It makes you question just how much more the ICC could have done, but perhaps decided against,” Buttu said.

Even Khan’s arrest warrants have been criticized for not being expansive enough. The crime of genocide is noticeably absent in his list of charges against Israel.

“It's a way of censoring themselves that they have to do something in order to make the court look credible,” Buttu said.  “At a certain point prosecutors are saying, ‘It's our own political safety, personal survival, and the survival of our families.’”

And with the possibility Israel’s reported intimidation and attacks against the ICC are working, then holding Israel accountable may feel unobtainable.

“We have to have this system [of accountability], and yet I'm very fully aware that it's got its major flaws and that when it comes to Israel, it just feels like it's never going to happen,” Buttu said.

Israel may have the international community — including its court — in a chokehold, but some human rights experts say the court’s persistence is cause for hope.

“In spite of all the interference, all of the lobbying, all of the pressure, [Khan] nevertheless went ahead with [the arrest warrants],” Michael Lynk, former United Nations Special Rapporteur on the situation of human rights in the occupied Palestinian Territories, told The New Arab.

The ICC is meant to act as a secondary jurisdiction to national authorities. In light of the recent investigation, however, Israel’s credibility has been eliminated, as Roth explained.

“The national authorities have to be proceeding in good faith, and it's going be difficult for Israel to maintain that it is investigating war crimes in Gaza in good faith when it so openly tried to manipulate the international inquiry into its conduct,” Roth said.

For Lynk, the framework of international law whereby entities must commit to certain rules —­ even if just on paper — can help reduce the gap between what states agree to and the reality presented.

“You can use international law and UN resolutions to say, ‘You committed yourself to this, therefore, why aren't you obeying it?’” Lynk said. “And that becomes often your single most effective diplomatic and political tool with respect to trying to make sure that there's as little daylight as possible between law and justice.”

Jessica Buxbaum is a Jerusalem-based journalist covering Palestine and Israel. Her work has been featured in Middle East Eye, The National, and Gulf News.

Follow her on Twitter: @jess_buxbaum