Possibly the most important question confronting Israel, assuming the current Gaza war is winding down, is whether its soldiers, commanders and policy decision-makers will be dragged before the International Criminal Court (ICC). 

If prosecuted, war-crimes indictments could potentially strategically harm the Israel Defence Forces itself and its volunteer fighting spirit (imagine Israeli travellers facing perpetual arrest on arrival in France or over 120 other countries because of volunteering specifically for IDF combat service).

At first glance, Israel is far more on the hot seat than it has been even in any prior situation.

Yes, the infamous Goldstone Report  (the 2009 UN Fact Finding Mission on the Gaza conflict) was essentially defeated and fell off the rails when the ICC prosecutor decided in April 2012 that “Palestine” was not a state, and, therefore, could not ask the ICC to investigate complaints of alleged war crimes by the IDF on its “territory.”

But the legal playing field was transformed in November 2012 when the UN General Assembly voted overwhelmingly to recognize Palestine as a non-member state.

Since then, current ICC prosecutor Fatou Bensouda has sent alternating signals about whether she would recognize Palestine’s right to request the ICC indict Israelis. 

In March 2013 in Paris, she reportedly came close to advocating that Palestine need only re-apply to be accepted.

But several weeks ago, her office downplayed the importance of her meeting with the PA foreign minister about Palestine trying to join the ICC. 

While the situation is worse, this train still is unlikely to leave the station. 

First, the United States will likely block any prosecution of Israel by the ICC because it could be next.

It was just accused by Amnesty International of war crimes for the killings of over 140 persons in Afghanistan and of its military justice system helping give cover to U.S. soldiers’ war crimes with impunity.

These are almost identical to allegations Israel faces.

The United States has been unequivocally opposed to ICC involvement in Israel-Palestine issues and threatened financially cutting-off the PA.

Even with its worst criticism of Israel in recent weeks, the elaboration of what was “disgraceful” about Israeli attacks was not that Israel had committed war crimes, but that it had not “lived up to its own standards.”

Due to U.S. concerns about the ICC prosecuting its servicemen in Afghanistan, Iraq and other places, the ICC has had to survive since its 2002 founding without formal U.S. support.

But the United  States, especially under the Obama administration, has signalled substantial informal support for the ICC on a number of occasions.

Some believe that if the United States permanently turned on the ICC, as it nearly did under president George W. Bush, that the organization could not survive, and most believe the ICC is far weaker when it runs into American opposition.

The EU is more sympathetic to the Palestinian side in general, but notably abstained from voting for the new soon-to-be initiated UN investigation against Israel.

It has also hinted that a September donor conference for rebuilding Gaza would be derailed by any ICC action.

There are also a number of legal obstacles to stop any PA train to the ICC.

Under the ICC’s complimentarity doctrine, it cannot intervene in a country that properly investigates itself. 

Israel’s February 2013 internationally respected Second Report of the Turkel Commission investigated Israel’s apparatus for self-investigating complaints, giving the IDF’s war crimes investigations a high grade.

There is also “mutually assured legal destruction” – the idea that any Palestinian complaint  would lead to much stronger counter-claims by Israel.

While the Palestinians would have a rough case trying to prove intentional Israeli killings of civilians in the urban fog of war when “mistakes were made” would be an equally logical explanation, every Hamas rocket could be a war crime since firing was indiscriminate.

There are other obstacles, but the bottom line is that while Israel must be vigilant on this issue and nothing is certain, it is still very unlikely that the sky is falling.