The Israeli government is split over whether the best way to counter a possible investigation into war crimes by the International Criminal Court is to refuse to participate in any proceedings, or to try and prevent the investigations by arguing the ICC has no jurisdiction here.

The Israeli dilemma follows an announcement on December 20 by ICC Chief Prosecutor Fatou Bensouda that there is basis to investigate Israel — as well as the Palestinian Authority and Hamas — over their actions in the West Bank and the Gaza Strip.

Ms Bensouda’s announcement, which comes after five years of preliminary investigations mainly into the 2014 Operation Protective Edge in Gaza, but in to other incidents as well, was initially met with accusations of “hypocrisy” and “antisemitism” from Prime Minister Benjamin Netanyahu and government ministers.

Israel, like the United States, is not a signatory to the Rome Statute which formed the ICC, and the initial impulse of the Israeli government, especially since it has the backing of the Trump administration on this issue, has been to refuse to cooperate with the court.

But senior officials in the legal establishment have warned the government of repeating the mistake of the refusal to cooperate with the Goldstone Commission, set up after Operation Cast Lead in Gaza in 2009.

In that case the commission which was set up by the UN Human Rights Council initially delivered damning conclusions on Israel’s conduct, but these were later dramatically watered-down when Israel did cooperate and shared information with the follow-up probe.

The Israeli Justice Ministry accused Ms Bensouda of having delivered her recommendation to the judges of the ICC without also presenting them with an official Israeli legal opinion written by Attorney General Avichai Mendelblit.

Mr Mendelblit had said that since the Palestinian Authority is not actual country, the ICC has no jurisdiction there. In a later appendix to her announcement, Ms Bensouda attached this Israeli position.

The existence of this signals that Israel is prepared to engage with the court at present, however senior officials in Jerusalem said this week that they believe that due to the upcoming election on March 2, Mr Netanyahu would be loath to continue any further cooperation and would try to make use a showdown with the court to highlight his steadfast defence of Israel’s international standing.

Any further meaningful attempts to try and persuade the ICC not to proceed simply on the legal merits will likely have to wait until after the election.