One need not be an expert in international law to see the absurdity of the ICC prosecutor’s determination that the leaders of Hamas and the leaders of Israel are equally guilty of war crimes. It takes only a little more knowledge to understand that the court has no jurisdiction over Israel, which is not a signatory to the Rome Statute, the ICC’s founding treaty. In a careful analysis, Avraham Russell Shalev outlines some of the many legal holes in this case, and observes that the problems are inherent in the court itself:

A review of the ICC’s relationship towards Israel over its two decades of existence demonstrates a fundamental bias and double standard toward the Jewish state. This bias is not a function of any specific prosecutor. Rather, it is an institutional feature, found even in the Rome Statute. . . . Israel initially refused to sign the Rome Statute as it became apparent that the Arab states had politicized the Rome Conference and introduced language that departed from existing international law specifically to criminalize Jewish communities in Judea and Samaria.

Therefore, argues Shalev, Jerusalem should deal with the case against it not as a legal problem, to which it would respond by dispatching lawyers to make carefully reasoned arguments, but as a political and diplomatic one. More specifically, he contends that

collaboration with the ICC will not reduce the very high chances of arrest warrants being issued against Israeli officials, but will give those charges great weight and legitimacy when they come. Instead, Israel must adopt a policy of non-cooperation and even offense.

And what does a policy of offense entail?

Israel has repeatedly stated that it does not recognize the ICC’s jurisdiction. Therefore, any legal proceedings are completely illegitimate and as such, the various legal bodies—the attorney general, the Justice Ministry’s International Affairs Office, the Foreign Ministry’s legal advisors, and the Military Advocate General’s International Law Department—will no longer communicate with the ICC. [In addition], the Knesset must pass legislation modeled on the American Service-Member’s Protection Act. This legislation would bar any government agency from cooperating with the ICC without a government decision.

While Israel has never accepted the ICC’s jurisdiction, the Palestinian Authority (PA) has willingly accepted it. The court can hardly turn around now and deny jurisdiction to avoid prosecuting Palestinian crimes. . . . Palestinian nationals, acting on behalf of Hamas, Fatah, and other terrorist organizations, and with no affiliation, have carried out serious war crimes against Israelis and Palestinians. Israel must publicly demand that the ICC issue indictments against them.

In a sense, the most successful negotiation with Hamas was the recent agreement securing the release of Edan Alexander, the last living hostage with a U.S. passport. Unlike those previously handed over, he wasn’t exchanged for Palestinian prisoners, and there was no cease-fire. Dan Diker explains what Hamas got out of the deal:

Alexander’s unconditional release [was] designed to legitimize Hamas further as a viable negotiator and to keep Hamas in power, particularly at a moment when Israel is expanding its military campaign to conquer Gaza and eliminate Hamas as a military, political, and civil power. Israel has no other option than defeating Hamas. Hamas’s “humanitarian” move encourages American pressure on Israel to end its counterterrorism war in service of advancing additional U.S. efforts to release hostages over time, legitimizing Hamas while it rearms, resupplies, and reestablishes it military power and control.

In fact, Hamas-affiliated media have claimed credit for successful negotiations with the U.S., branding the release of Edan Alexander as the “Edan deal,” portraying Hamas as a rising international player, sidelining Israel from direct talks with DC, and declaring this a “new phase in the conflict.”

Fortunately, however, Washington has not coerced Jerusalem into ceasing the war since Alexander’s return. Nor, Diker observes, did the deal drive a wedge between the two allies, despite much speculation about the possibility.