In late December 2019, the chief prosecutor of the International Criminal Court (ICC) at the Hague, Fatou Bensouda, announced that a “basis” exists to investigate the “situation in Palestine” and whether Israel committed war crimes during 2014’s Operation Protective Edge, as well as the Gaza border conflict of 2018-2019. Earlier this month, the court gave the green light for Bensouda to open an investigation of alleged war crimes committed by American servicemen during the United States’ war with Afghanistan.
If it sounds worrisome for Israel and the U.S., that’s because it is. Both Israel and the U.S. are not members of the ICC and did not ratify the court’s founding Rome Treaty, precisely because both countries feared it was a structurally biased institution and would become the politicized body it has. The ICC does not try states, but individuals. That means although the U.S. and Israel are not parties to the Rome Treaty, their citizens, leaders and soldiers are not immune from indictment, prosecution and arrest warrants in countries that are parties to the treaty (and there are 123 member countries of the ICC).
The International Criminal Court was created in 2002 to prosecute individuals for international crimes of genocide, crimes against humanity and war crimes. The institution was meant to function as a “court of last resort," which means it should step in when rogue nations do not hold ostensible perpetrators of war crimes accountable. In this sense, the ICC is a powerful resource to maintain law and order around the globe and to serve as a deterrent to tyrants from committing grave crimes. However, as we have witnessed another international body, the United Nations Human Rights Council, stray from their noble cause into a political farce, so too has the International Criminal Court.
The United States and Israel both have vibrant democracies, each with some of the world’s most respected judicial systems that investigate alleged wrongdoings by their militaries. The notion that the ICC would open inquiries into both countries is obscene. The U.S. and Israel currently view the court as a politicized and illegitimate institution. U.S. Secretary of State Mike Pompeo recently called the most recent ruling on Afghanistan a “truly breathtaking action by an unaccountable, political institution masquerading as a legal body,” and Israeli Ambassador to the United Nations Danny Danon referred to the investigation of Operation Protective Edge as “diplomatic terrorism.”
For years, the Palestinian Authority (PA) along with several Palestinian NGOs, backed by thousands of euros from European governments, has threatened to open a probe of war crimes against Israel. In 2015, the PA joined the Rome Treaty and several countries recognized Palestine as an independent state. However, contrary to some wishes, Palestine is still not a sovereign state according to the Vienna Convention, upon which the Rome Statue is based. Therefore, Israel’s Attorney General Avichai Mandelblit has argued that “only sovereign states can delegate criminal jurisdiction to the International Criminal Court. The PA does not meet the criteria.” It’s quite straightforward. The ICC has no jurisdiction to investigate the PA’s request, and it certainly has no jurisdiction over Israel, which is not a party to the institution.
In over two decades, the ICC has only ever convicted three people in trials of war crimes and crimes against humanity. Given the last decade and the atrocities out of Syria or human rights abuses out of Iran, let alone the nearly daily war crimes committed by Hamas, e.g. sending incendiary balloons across the Gaza border to land in school yards, that there has been little interest in prosecuting such crimes speaks volumes about the political agenda and anti-Israel bias of the court.
Israel's short history has been consumed by Palestinian warfare since before the state’s creation, from terrorism to the battlefield, to the media and the BDS and delegitimization campaign and now through lawfare. We cannot underestimate the use of lawfare as a weapon against the Jewish State and dismiss it as mere politics. It may be a political show, but this time Israel cannot dismiss the ICC’s legal positions in the same way it dismisses rulings by the U.N. General Assembly. International law carries with it very real consequences and not just from a P.R. perspective of assigning the label of war criminal to an Israeli leader. If said person refuses to submit to interrogation by the ICC prosecutor and travels to an ICC member state like Germany or England (as well as much of the rest of Europe, South America and Africa), that person could theoretically be arrested as soon as their plane lands on foreign soil. That scenario would lead to an international scandal of epic proportions, causing severe diplomatic rifts—rifts Israel cannot afford.
The ICC Pretrial Chamber is expected to decide sometime after this month whether or not it will recognize a “State of Palestine,” (meaning whether or not it actually has jurisdiction), and determine if they will proceed with a full criminal investigation. For now, we will watch as things unfold, continue to advocate on Israel’s behalf and hope Israel continues to mount a multi-layered defense against this delegitimization.
For years, we have made the case that Israel continues to be subjected to unequal footing and outright systemic bias within the international community. The latest moves by the ICC add it to the growing list of anti-Israel, arguably anti-Semitic, international bodies. The real tragedy here is that victims of actual crimes against humanity may never see justice because a pervasive international obsession with the one Jewish State trumps all else.
Rebecca Rose is Associate Director of Development & Special Projects at B’nai B’rith International. She holds an M.A. in Political Science in Security and Diplomacy from Tel Aviv University.
In recent weeks, I found myself inundated with front page news headlines, opinion pieces and press releases on the Israeli government’s decision to bar entry to two American congresswomen to the country (it just so happened that these congresswomen also attempted to bring the unfathomable thought of boycotting Israel into the halls of Congress). The outpour of reactions, ranging from disagreement to outrage, from the American Jewish community was striking to me, because in real-time over in Israel, it appears the country could once again be on the verge of war, and this time on several fronts.
Last fall, I attended a briefing on a report by the Jewish Institute for National Security in America (JINSA) titled, “Israel’s Next Northern War: Operational and Legal Challenges.” A fundamental issue the report articulates is that because Hezbollah cannot defeat Israel by force, the Iranian proxy will exploit its next war with Israel in the court of public opinion, further delegitimizing the Jewish State in the international community, even if Israel decisively wins in battle.
Publicly lambasting the Israeli government on the issue of the congresswomen simply gave more fuel to the fire to a media and world community that takes any opportunity to criticize or condemn the one Jewish State. It doesn't seem wise to do so at a time when we should be advocating in the public sphere about the intensifying crisis on Israel’s borders. Perhaps we in the Diaspora need a refresher on Israel’s security concerns. It may not be public knowledge, but Israel cannot afford to lose one battle.
After decades of war, neighboring states in confrontation with Israel realized they could not conquer Israel through the conventional methods of military, air and intelligence warfare. Therefore, Israel’s enemies focused on long-range ballistic missiles and terrorism. In formulating Israel’s security doctrine, Prime Minister David Ben-Gurion knew that military victory would always be limited and temporary at best due to the enormous size of the Arab world and geographic and population asymmetry in comparison with Israel. Israel’s single defense goal, therefore, is to ensure its preservation, and as such, it cannot afford to lose one single war. In the decades since Israel’s major conventional wars, and with the ongoing phenomenon of hybrid warfare (where a law-abiding army is confronted by non-state actors and guerilla militias that do not abide by the laws of war), and after the lessons of the 2006 Lebanon War, the IDF expanded the security doctrine and developed a new concept of preemptive warfare: the Campaign Between Wars (CBW). The strategy’s goals are to delay and deter war by weakening the enemy’s force buildup and capabilities, exposing the enemy’s clandestine military activities and creating optimal conditions for Israel if it should face war.
The CBW strategy has been successful thus far in delaying war as it continues to meet its objectives. However, the threats continue to grow, and with recent escalations, the region is arguably ripe for war. Here is a brief rundown on the challenges Israel currently faces on its five fronts in Lebanon, Syria, Gaza, the West Bank and the Sinai Peninsula: As most of us know, at the center of all Israel’s perils lies Iran’s desire for hegemonic control of the region and its desire to wipe Israel off the map. Through Iran’s militias supported by the Islamic Revolutionary Guards Corps-Quds Force in Iraq, Syria, Lebanon, and Yemen, Iran’s presence is ever-growing in the region and preventing its military entrenchment (and its unrelenting desire for nuclear weapons) has been Israel’s top priority for years. Israel is currently engaged in a shadow war with Iran through its proxies and forces surrounding Israel’s borders and in Gaza. The risk of a multi-front war is very real.
To Israel’s border in the north with Lebanon sits Iranian--backed Hezbollah—arguably the most powerful non-state actor in the world--which has been stockpiling missiles since the last war in 2006. According to Israeli officials, Hezbollah is currently estimated to have as many as 150,000 missiles, many of which are now much more technologically advanced precision-based missiles, which have the capability to be guided to a specific site—like major Israeli cities. Therefore, in recent months, Israel has made its primary focus thwarting the Hezbollah/Iranian precision-guided missile program. According to the aforementioned report by JINSA, Hezbollah now possesses more firepower than 95 percent of the world’s conventional militaries, and more rockets and missiles than all European NATO members combined. Several serious tit-for-tats with Hezbollah over the last couple of weeks have put the country—and region—on edge, as any escalation can very quickly turn into full-scale war. With Iranian-backed Hezbollah in the north threatening to destroy Israel, this time with the capabilities to wage a damaging war, Israel (and the world community) is on high alert.
To Israel’s northeast, the vacuum for power in Syria has enabled Iran’s ascension. Iran has sought to establish offensive drone bases and military posts in Syria near the Israeli border, and it continues to be met with Israel’s zero tolerance policy. Iran has also attempted to build a land corridor linking Iraq to Syria in order to transfer weapons and move its militias, bringing Iraq into the fray. With the CBW strategy, Israel has been both clandestinely and openly destroying Iran’s encroachments.
It’s been five years since 2014’s Operation Protective Edge, the war with Hamas in Gaza, and though there has been relative quiet over the years, Israel has been tolerating missiles, incendiary balloons sparking dozens of fires, violent border riots, etc. Every so often, due to rocket attacks into Israel, there are skirmishes between the IDF and Hamas, which can very easily spiral into another war campaign. Other Islamist extremists have also found their way through Egypt to the Gaza strip and are now vying for power against Hamas. Believe it or not, Israel faces the threat of even more extreme groups if Hamas should fall.
In the West Bank, violence is mostly contained, though terror ensues on Israeli citizens always. The Palestinian Authority, led by the weakened Mahmoud Abbas and backed by the militant Fatah, could face off with Hamas (they are at war with each other as well) if Abbas should lose power or die in office. The risk of chaos in the West Bank with Iran looming large is a very real threat to the stability and safety of Israel. There is also a soon—to--be unveiled peace plan created by President Trump, which invariably comes with the prospect of unpredictable responses from the Palestinians. If history tells us anything, these responses are usually violent.
To Israel’s southern-most border with Egypt, in the Sinai Peninsula, there remains an ongoing jihadist insurgency due to Egypt’s weak control of the area after the Egyptian Revolution in 2011. This means groups like ISIS and other Islamist militant militias are active, vying for control and fighting Egypt’s security forces right on Israel’s border.
As you can see from this very brief synopsis of the security situation along Israel’s borders, the reality is forbidding. Through the IDF’s strategic “Campaign Between Wars,” they have been mostly successful keeping war at bay, but the reality is that when dealing with irrational actors, it is often very hard to predict tomorrow. So shouldn’t we be spending our time and energy with opinion pieces and press releases on Israel's serious security concerns until that becomes the front page of The New York Times, and not the outrage over two congresswomen? If we don’t spread the knowledge on what Israel’s enemies are up to, who else will? It is our job, as we sit in the safety of the Diaspora, to show the world just what Israel is up against. Without our advocacy, the world’s indifference is deafening.
Rebecca Rose is Associate Director of Young Leadership & Development at B’nai B’rith International. She holds an M.A. in Political Science in Security and Diplomacy from Tel Aviv University.
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