What are the implications of Israel's rejection of the International Criminal Court's authority?

Israel rejected the Hague-based International Criminal Court’s (ICC) authority to probe alleged war crimes committed by Israel and in a formal letter to the court, the Prime Minister’s Office said that “Israel completely rejects the claims that it is carrying out war crimes.” 

The investigation is expected to focus on the 2014 war between Hamas and Israel in Gaza and the lethal Gaza border riots in 2018, which took place in protest of the opening of the U.S. embassy in Jerusalem. In addition, the probe will likely also review Israel’s settlement policy in the disputed territories, including East Jerusalem.  

Israeli leaders across the political spectrum have condemned the ICC’s decision to investigate alleged war crimes committed by the Jewish state. Prime Minister Benjamin Netanyahu called it “pure anti-Semitism.” 

Several former world leaders have expressed support for Israel against the ICC, including former Canadian Prime Minister Stephen Harper, former Australian Prime Minister John Howard, former German Defense Minister Karl-Theodor zu Guttenberg and former Spanish Prime Minister Jose Maria Aznar.

But what are the implications of Israel’s strategy to reject ICC’s authority and what could happen next?

There are several legal limitations connected to the issue. Like the United States, Israel is not a member of the ICC and the Biden administration opposes the part of the ICC investigation related to the disputed territories. In addition, the ICC prosecutor Fatou Bensouda’s decision to initiate an investigation is based on a request submitted by the “State of Palestine.” However, legally speaking, the Palestinian Authority (PA) is not a state and its limited jurisdiction is split between the PA in Ramallah and Hamas in the Gaza Strip. 

Despite Israel’s rejection of the court’s authority and U.S. opposition, the ICC could decide to pursue investigations in the coming months. If the court eventually rules that Israel is guilty of “war crimes,” it could penalize the Jewish state by issuing arrest warrants against Israeli leaders, such as the prime minister himself and senior IDF officers. The impact of these legal measures, to a large degree, would depend on the responses of the Biden administration and the European Union. If Washington and the European Union reject the court’s conclusions, it would dramatically undermine the effectiveness of its ruling. 

The ICC’s decision to investigate Israeli construction in the Jerusalem area could have wider legal implications. For instance, the court could rule that Israeli neighborhoods in Jerusalem built beyond the 1967 line constitute a “war crime” by framing it as illegal “transfer by an occupying power of parts of its own civilian population into occupied territory.” However, this international legal argument is not applicable to Israel. The Jewish population living beyond the 1967 lines moved there out of their free will. In addition, the West Bank is legally a disputed rather than “occupied” territory. 

However, it is unclear how the United States would respond in such a scenario. Like former President Donald Trump, U.S. President Joe Biden recognizes Jerusalem as Israel’s capital.

However, the Biden administration has not defined the boundaries of Israeli sovereignty in Jerusalem and Biden is also a long-time critic of Israeli settlement construction beyond the 1967 lines. While it is unlikely that Biden will allow labeling Israeli communities beyond the green line as a “war crime,” his administration could use such a ruling as leverage to curb Israeli construction beyond the 1967 lines. 

Meanwhile, ICC prosecutor Bensouda, who is considered biased against Israel, will be replaced in June by the British lawyer Karim Khan. Jerusalem reportedly hopes that Karim will emerge as less hostile or even cancel the probe all together against the Jewish state.