Israel talks to the ICC prosecutor

Reuters is reporting that Israeli officials are speaking with the prosector of the International Criminal Court (ICC) regarding its preliminary examination in Palestine. Israel is not an ICC member and has argued that Palestine has no standing to join the court or grant it jurisdiction. But Israeli officials have decided—correctly, in my view—that communication with the prosecutor is the best strategy for now:

The disclosure, in an interview with Reuters, would indicate a step-up in Israeli engagement with the Hague-based tribunal and a shift from a policy of non-cooperation with ICC probes of alleged war crimes in Palestinian territories.

An Israeli government source said there was contact with the ICC on procedural issues, but declined to go into detail.

"Israel has agreed to engage with my office and we are exchanging information," ICC prosecutor Fatou Bensouda said during a visit to the U.N. in Geneva late on Thursday. She said the ICC was in touch with both sides in the Gaza conflict.

In fact, quiet exchanges between Israeli officials and the court began several years ago, after Palestine first requested ICC involvement in 2009. Israeli officials had quiet meetings with then prosecutor Luis Moreno-Ocampo in The Hague to put forward their arguments against court involvement.

For now, Israel's approach to the court mirrors the U.S. approach to the ICC's preliminary examination in Afghanistan (which might, in theory, expose U.S. personnel to prosecution). U.S. officials have maintained that the ICC should not exercise jurisdiction over U.S. nationals but they have quietly exchanged information with the prosecutor in an effort to forestall a full investigation. As the Reuters piece points out, Israel will face a more difficult choice if the prosecutor seeks access to Palestinian territory to conduct interviews. To date, it appears that ICC officials have only met with Palestinians in The Hague and in Amman, Jordan.