For six years Israel has played a dual game fighting the potential International Criminal Court war crimes allegations facing it regarding the Palestinians.
Prime Minister Benjamin Netanyahu and others have slammed the ICC as the enemy who should be delegitimized and isolated at all costs.
They encouraged the Trump administration’s own leaning to sanction ICC officials and threaten them financially and in terms of granting visas.
This is the take-no-prisoners approach of framing the ICC like the UN Human Rights Council – a body Jerusalem generally feels is beyond saving and not worth cooperating with.
Until now, the Foreign Ministry’s Tal Becker and the Justice Ministry’s Roy Schondorf, both at intermediate positions and more recently leading the legal battles, had pressed, along with others, for parallel efforts of dialogue with the ICC.
They said dialogue could increase Israel’s chances of success, buy time, reduce the quantity of allegations and was important for Israel to try to stake out the moral high ground.
When The Jerusalem Post became the first Israeli media outlet to interview ICC Prosecutor Fatou Bensouda in February 2016 during a visit to The Hague, Bensouda made it clear she valued Israel’s cooperation and that the dialogue had been significant.
In October 2016, Israel even allowed the ICC to visit, something it did not allow any of the recent UNHRC commissions to do, whether those led by Richard Goldstone, Mary McGowan Davis or others.
Since then, the Post has been privy to a wide range of interactions, some more formal and some more informal, between Israeli officials and surrogates and the ICC.
Israeli legal officials argued that the ICC was a professional legal institution, which might be different from the UNHRC.
Those who never wanted to cooperate have jumped on Bensouda’s December 2019 and the ICC Pre-Trial Chamber’s Friday decision as proof that dialogue was a waste of time.
They are arguing that all the time, money and trees (huge amounts of paper used in legal briefs) came to nothing, and that a bruising diplomatic strategy to pressure the ICC is the only answer.
Israeli legal officials said on Saturday night that they have already had a major win by delaying the ICC decision until 2021 while the UNHRC had already ruled against Israel for the 2014 Gaza war back in 2015.
They say the 2-1 decision with a vehement dissent and that Bensouda’s seeking support from the ICC judges to criminally probe Israel shows they have been taken seriously.
The dialogue camp will now say they can press for more results, including getting IDF conduct completely tossed out of the criminal probe by arguing that the IDF has probed war crimes allegations.
This in and of itself would be a major win.
They also believe the case against the settlements can be tossed or at least winnowed down.
The question is whether they are right and whether they will be given a chance, or whether the two major decisions that have gone against Israel will end the experiment of exploring cooperation with the ICC.