Last spring, the International Criminal Court (ICC) determined that it has jurisdiction over Israel’s actions in the Gaza Strip, the West Bank, and part of Jerusalem, although Israel is not a party to the Rome Statue that created the court, and although the “state of Palestine,” which has brought the underlying complaint, does not exist. Another ICC report calls for a full investigation of the Jewish state. Nicholas Rostow explains why nothing good will come from these cases, or from the court’s inevitable decision to involve itself further in the prosecution of Israeli leaders and soldiers:

Palestinian statehood and territory are among the most important, undecided questions to be determined by agreement between Israel and the Palestinian Authority. If the ICC concludes that it has jurisdiction over Israeli actions, then the court would find itself embroiled in one of today’s longest running and most difficult conflicts. The consequences are not foreseeable, except to say that they will be serious and severe.

If the ICC takes up the question of whether aggression has occurred, it will be looking at high-level government decisions, not simply troops engaged in combat (although getting to the bottom of what exactly happens in battle is no easy task). It also will be making a determination of where Israel’s boundaries lie.

And unlike the U.S., which may also face a spurious ICC investigation, Israel cannot impose severe costs on those who would prosecute its citizens. Moreover, writes Rostow, the underlying premise of the investigation is even more wrongheaded:

In the nearly twenty years of its existence, the ICC has not persuaded the world’s most powerful states to join the Rome Statute. Their position has little to do with their view of accountability or ending cultures of “impunity,” a favorite term in UN circles. Their concern has to do with the inescapable political character of decisions about jurisdiction and a desire to protect themselves from unwanted intrusions into their national affairs.

We must anticipate that the ICC will decide to exercise jurisdiction over actions by Israel and the United States as requested by the Palestinians and the Afghan government, respectively. It is unlikely that Americans will suffer as a result. It is entirely likely, however, that Israel, already subject to constant questioning of its legitimacy as a state, will face even greater difficulty than it does presently to reach peace with the Palestinian Authority. The ICC cannot contribute to the achievement of that goal.

Even if the agreement with Hamas to secure the release of some, and possibly all, of the remaining hostages—and the bodies of those no longer alive—is a prudent decision for Israel, it comes at a very high price: potentially leaving Hamas in control of Gaza and the release of vast numbers of Palestinian prisoners, many with blood on their hands. Nadav Shragai reminds us of the history of such agreements:

We cannot forget that the terrorists released in the Jibril deal during the summer of 1985 became the backbone of the first intifada, resulting in the murder of 165 Israelis. Approximately half of the terrorists released following the Oslo Accords joined Palestinian terror groups, with many participating in the second intifada that claimed 1,178 Israeli lives. Those freed in [exchange for Gilad Shalit in 2011] constructed Gaza, the world’s largest terror city, and brought about the October 7 massacre. We must ask ourselves: where will those released in the 2025 hostage deal lead us?

Taking these painful concessions into account Michael Oren argues that they might nonetheless be necessary:

From day one—October 7, 2023—Israel’s twin goals in Gaza were fundamentally irreconcilable. Israel could not, as its leaders pledged, simultaneously destroy Hamas and secure all of the hostages’ release. The terrorists who regarded the hostages as the key to their survival would hardly give them up for less than an Israeli commitment to end—and therefore lose—the war. Israelis, for their part, were torn between those who felt that they could not send their children to the army so long as hostages remained in captivity and those who held that, if Hamas wins, Israel will not have an army at all.

While 33 hostages will be released in the first stage, dozens—alive and dead—will remain in Gaza, prolonging their families’ suffering. The relatives of those killed by the Palestinian terrorists now going free will also be shattered. So, too, will the Israelis who still see soldiers dying in Gaza almost daily while Hamas rocket fire continues. What were all of Israel’s sacrifices for, they will ask. . . .

Perhaps this outcome was unavoidable from the beginning. Perhaps the deal is the only way of reconciling Israel’s mutually exclusive goals of annihilating Hamas and repatriating the hostages. Perhaps, despite Israel’s subsequent military triumph, this is the price for the failures of October 7.