In December 2019, the chief prosecutor 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, and settlement activity in the West Bank and Jewish building in east Jerusalem since 2014. The alarm was sounded then, but it is now on full blast since earlier this month, when the chief prosecutor decided to move forward with a criminal investigation--this coming after a February Pre-Trial Chamber ruled 2-1 that the court had jurisdiction to investigate.
At the end of 2019, the ICC also 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, that’s because it is. 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 truly obscene. The U.S. and Israel currently view the court as a politicized and illegitimate institution. Former U.S. Secretary of State Mike Pompeo called the most recent ruling on Afghanistan a “truly breathtaking action by an unaccountable, political institution masquerading as a legal body,” and former 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 Statute and several countries recognized Palestine as an independent state. However, the fact remains that Palestine is still not a sovereign state according to the Vienna Convention, upon which the Rome Statute 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.
However with February’s decision, the Pre-Trial Chamber ruled that the court does have jurisdiction. It is basing this decision on the Palestinian de facto status of non-member state, which allows the PA to sign U.N. treaties and statutes—in this case the Rome Statute. The Pre-Trial Chamber of the ICC has thus determined for this case, the “State of Palestine” is independent and therefore the court has jurisdiction to open the investigation to Israeli—and Palestinian— war crimes that occurred since June 13, 2014, Operation Protective Edge.
Israeli Prime Minister Benjamin Netanyahu said of the February ruling: “The ICC violated the right of democracies to defend themselves against terrorism and played into the hands of those who undermine efforts to expand the circle of peace. We will continue to protect our citizens and soldiers in every way from legal persecution.”
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 shouldn’t underestimate the use of lawfare as a weapon against the Jewish State and dismiss it as mere politics. Unlike some of the anti-Israel resolutions in the General Assembly and other U.N. agencies, the ICC legal position carries operative provisions.
For example, if an Israeli former military leader is convicted and 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. This could potentially bring lawsuits against Israeli top leaders like Prime Minister Benjamin Netanyahu, Defense Minister Benny Gantz and the former Defense Minister Naftali Bennett, as well other top Israeli leaders, and individual commanders and soldiers. This scenario would lead to an international scandal of epic proportions, causing severe diplomatic rifts—rifts Israel cannot afford--not to mention serious policy and security challenges. A ruling could also tie Israel’s hands in regards to its self-defense in any future war. Further worrisome, the ICC will look at settlement activity in the West Bank and Jewish building in east Jerusalem, and it may determine any activity after 2014 a war crime.
There is some hope though, in that after nine years Chief Prosecutor Bensouda will step down this coming June to be proceeded by British barrister Karim Khan. Khan will have to decide next steps on the probe into war crimes in Afghanistan and whether the court will continue its investigation of Israel and Hamas. We hope that Khan will shy away from politicization and perhaps even restore some level of integrity to the court.
But as Israel’s allies we cannot take anything for granted and we must continue to mount a multilayered defense blitz 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—it is truly politicization of a multilateral body on steroids. The good news is there has been an outpouring of support and condemnation of the investigation from the United States, Germany, the Czech Republic, Hungary, Austria, Uganda, Brazil, Australia and Canada, and we expect more.
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.
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