How the International Criminal Court going after U.S. for war crimes impacts Israel

"From the Israeli perspective, there is both some bad news and some good news with regards to the legal bombshell that the International Criminal Court prosecutor dropped on the US on Monday.

The ICC prosecutor filed a formal submission to move the US's conduct in the Afghanistan War and its interrogation of its prisoners to a full criminal war crimes investigation.

In short, the bad news for Israel is four-fold. The ICC crossed the Rubicon in daring: 1) to go after a democracy, the US, which said it had investigated itself, 2) to go after the world's superpower despite the diplomatic consequences, 3) to go after 'war crimes' beyond the traditional paradigm of prosecuting genocide, namely the US's 'torture' interrogations, which many thought the ICC would stay away from, and 4) to go after top US defense and intelligence officials and not just the rank and file.

Until now, Israel's main hopeful defenses to keep the ICC out of its affairs have been: 1) that it is a democracy which said it had investigated itself, 2) that the ICC would be afraid to endure diplomatic sanctions from the US and other Israeli allies, 3) that it would shy away from going after non-traditional 'war crimes' beyond genocide, such as the settlement enterprise or Israeli interrogations of Palestinians, and 4) it would be deterred from going after senior Israeli officials.

But if the ICC dared to go after the US despite all four of these issues, what will stop it from going after little Israel next? If it went after the Americans for torture (and after Malians for destruction of cultural heritage sites as war crimes), why won't it go after Israel for settlements and interrogations – even if these have never been prosecuted as war crimes before? The simple answer is that the ICC going after the US ensures that it is more likely than ever that it will also go after Israel at some point.

And yet there is also good news from the Israeli perspective...

By the time the ICC goes after Israel, if it still has the stomach, it will likely have endured years of legal and diplomatic warfare with another democracy, the US.

There is no way the US is going to cooperate with the ICC's investigation, certainly not under the Trump administration. That means that the ICC's challenge to the US will almost certainly blow up in its face...

Regardless of the reason, if the ICC goes after Israel, by the time it does, the world will have gotten used to the idea of democracies ignoring it when it is perceived as having overreached."