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In late November 2013Israel and the EU reached a last minute compromise enabling Israel to join theEU’s research and development program, Horizon 2020. Nonetheless, the EUguidelines adopted earlier this year relating to the settlements in the WestBank will likely continue to jeopardize Israel’s international economicinterests. According to the guidelines, projects carried out in Israelisettlements beyond the Green Line will not be eligible for EU grants, andorganizations that operate beyond that line will not be eligible for EU loansand financial assistance.

Other developments onthe international legitimacy front pose related threats to Israel’s internationalstanding. One concerns the Palestinian Authority, which recently revisited theintention of prosecution against Israel before the International Criminal Court(ICC). Indeed, the EU has encouraged the Palestinian Authority to join the ICCshould Israel pursue its settlement policy.

On a differentmatter, nearly three years after the Israeli takeover of the ship MaviMarmara, the Comoros Islands, a small African archipelago near Madagascar,filed a complaint against Israel with the ICC. Comoros, where the ship wasregistered, is a tiny 2000 square km United Nations member with a population ofless than one million. As a signatory of the ICC it has the formal standing tobring such a claim.

The incident is nowunder preliminary examination to determine if the alleged crimes are seriousenough for court intervention. This, despite the fact that the UN Palmer reportacknowledged the legality of the Gaza blockade and recognized that Israelicombatants were responding to an initial attack by the passengers.

The Office of theProsecutor (OTP) reported recently that the examination is currently in phase 2– analysis. In fact, very few preliminary examinations actually lead to a fullinvestigation, much less an actual trial or realistic possibility of conviction.The OTP is currently conducting preliminary examinations in eightsituations only out of more than 550 submissions in the last year: four (including the Comoros file)on subject-matterjurisdiction, and four on admissibility. Such proceedings should raise concernin Israel, however, in light of the Palestinian plea for membership in theUnited Nations and its expressed intention to apply to international tribunalsand subsequently file claims against Israel and Israelis.

Although riddled withimperfections and often facing harsh criticism on issues such as itsquestionable legitimacy and insufficient means of enforceability, theInternational Criminal Court is a worldwide, easily recognizable establishment.Even if it is not universally acknowledged as the world's primary criminalcourt, the ICC has commanded the attention of many major media outlets, oftenindirectly dictating which stories receive international attention. Althoughthe ICC claims to be an unbiased judicial entity, the practical consequences ofthe court are visibly political. Thus even cases that are not selected fortrial receive a considerable amount of international media attention.

The ICC has 122signatories, but many countries are hesitant to acknowledge the court'sauthority. For various reasons (including the United States standpoint that theICC violates international law by imposing obligations without consent), it hasfailed to gain support of countries such as the United States, Russia, andChina. Therefore, the ICC lacks influence in its ability to make a meaningfulimpact and legitimately enforce its convictions.

Israel is not asignatory of the act whereby the ICC was established according to the RomeStatute. Nevertheless, theoretically it can be brought under ICC jurisdictionin one of three ways: if the prosecutor receives a referral by the UN SecurityCouncil, if the crime was committed in the territory of a signatory, or (howeverunlikely) if Israel consents to being subject to the court's jurisdiction.Turkish lawyers representing Comoros claim that under Article 12 of the RomeStatute, which states that territorial jurisdiction is established if the crimetook place on a signatory's vessel, Comoros has a legitimate claim in bringingIsrael under the court's jurisdiction.

Realistically, thecase in question is not likely to invoke further ICC intervention. The courtwas established with the idea of complementing national jurisdiction, notreplacing it with international law. Thus, the ICC generally does not intervenewhen a country has the capability of conducting an independent, objectiveinvestigation. Moreover, the jurisdiction of the Court is questionable primafacie because the incident has already been the subject of multiple credibleinvestigations. A thorough analysis of the incident was sponsored by Israelpromptly after the event occurred through the Turkel Commission. Investigatorsfound that any mistakes that were made were not criminal and certainly did notwarrant further international probing.

Furthermore, thiscase would not likely proceed to trial due to the nature of the incident. TheICC was created with the intent of prosecuting truly heinous crimes, such asgenocide and torture, generally committed in a systematic manner over anextended period of time. The court was not meant for small scale, isolatedevents, let alone cases of self defense or a justifiable blockade. Indetermining what crimes warrant prosecution, the ICC uses a "gravitythreshold," meaning the alleged crimes must have widespread andsubstantially grave consequences. Generally the court will examine the scale,nature, manner of commission, and impact of the crimes. In comparison to thetreacherous acts in former ICC prosecutions, the events surrounding the Marmaraare considerably mild.

Therefore, inacknowledging both the jurisdictional issues of the case and the obviouslikelihood of inadmissibility due to the nature of the alleged crimes, onequestions the motives in bringing a claim that is so clearly incompatible withpast patterns of the court. Moreover, if the ICC eventually takes up thematter, it is bound to examine a situation as a whole and must consider allactions by any party in order to make its decision whom to prosecute and forwhich crimes: Palestinians and especially Hamas may well be also prosecuted. Hencethe question: is this complaint brought as a legitimate means of seekingjustice, or is the ICC being used – and not for the first time – as a politicaltool to invoke a media response?

In a world whereinternational image carries immense weight, being in the worldwide spotlightdue to alleged war crimes has the potential for bringing considerably graveimpacts on the accused and, in Israel’s case, further nurture thede-legitimization campaign against it – even if there is no substance to aclaim. Moreover, it is particularly problematic that any signatory, withoutconsequence or accountability, can easily bring accusations against citizens ofany state, even one that has not consented to the jurisdiction of the ICC.

The claim regardingthe Marmara incident is evidence that the ICC has the potential fordangerous manipulation. When countries can so easily mask political intent as ajudicial claim, the court is more likely to be used as a tool for strategic mediaexposure, as opposed to its stated purpose as a mechanism to seek internationaljustice.

There is temporary reliefin the last minute understanding reached between the EU and Israel regardingHorizon 2020, and in negligible prospects for the Comoros ICC claim againstIsrael. However, Israel operates in an increasingly complicated and delicateenvironment, which demands constant sensitivity and accommodation to thenumerous facets of the international arena.