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Israel and the International Criminal Court’s Bogus Bias

July 1, 2020

by: Cheryl Hauer, International Vice President

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The Jewish state is used to it, really. Israel has long been the target of criticism and double standards from the international community, most notably the United Nations (UN) and its watchdog body, the UN Human Rights Council (UNHRC). It has faced allegations ranging from the tragic to the ludicrous. As of late, Israel finds itself in the crosshairs of another global body birthed by the UN—the International Criminal Court (ICC)—facing what many are calling an illegal and prejudiced investigation designed to further delegitimize and isolate the Jewish state.

Who is the ICC?

The ICC headquarters in the Netherlands

The ICC is an international tribunal which has jurisdiction to “bring to justice the perpetrators of the worst crimes known to humankind,” including genocide, crimes against humanity, war crimes and the crime of aggression. It is intended to assist national judicial, and it may exercise its jurisdiction only when national courts are unwilling or unable to prosecute criminals. The ICC lacks universal territorial jurisdiction and may only investigate and prosecute crimes committed within member states or committed by nationals of member states.

Created in 2002 with honorable enough intentions, the ICC was tasked with “ending the impunity of those accused of committing the most heinous of crimes.” Technically, it is not an actual court in that it does not follow basic rules of judicial evidence and procedure. It has been criticized for an absence of jury trials; allegations of allowed factual errors and hearsay evidence; and providing no right to a speedy or public trial or reasonable bail. Its detractors say the body has fallen far from its original noble goals, becoming yet another highly politicized UN body driven by a prejudiced political agenda.

The Rome Statute is the multilateral treaty that serves as the ICC’s foundation. States that become party to the Rome Statute also become member states of the ICC. As of November 2019, there are 123 such ICC members, having given the ICC jurisdictional authority to investigate and prosecute international crimes committed within their borders or by their nationals within the borders of other member states when their own courts are unable to do so.

The United States and Israel are conspicuous by their absence on the ICC roster. Although the Rome Statute was signed by US President Bill Clinton, it has never been ratified by the US Congress. Israel acted in a similar manner. Although some believe the US Constitution prohibits such membership, the primary reasons for America’s lack of participation are the same as those of Israel: the ICC lacks prudent safeguards against political manipulation; possesses sweeping authority without accountability; and the grave concern that the court would treat Israel, America and their allies unfairly due to political pressure. Such concerns are clearly becoming reality.

The Accusations

ICC chief prosecutor Fatou Bensouda

At the heart of the current controversy is ICC Chief Prosecutor Fatou Bensouda and her determination to open investigations against Israel for war crimes and genocide allegedly committed in the “Occupied Palestinian Territory called the West Bank [Judea and Samaria],” Gaza and eastern Jerusalem, all at the request of the “state” of Palestine. However, Bensouda’s long record of anti-Israel bias is well known, and reports abound that her office is collaborating with anti-Israel NGOs affiliated with terror group the Popular Front for the Liberation of Palestine (PFLP), some of which have current or past PFLP members actually serving in leadership and directorial positions.

In a report issued by Israeli watchdog group Palestinian Media Watch, there is ample evidence of the ICC’s “prosecutorial bias against Israel, the susceptibility of ICC judges to self-interest among political considerations,” and Bensouda’s own history, which “casts doubt over her suitability to serve as prosecutor at the ICC,” having repeatedly “demonstrated bias and close ties to Palestinian officials, some of whom should be tried for real war crimes themselves.”

The Reaction

US Secretary of State Mike Pompeo

The international community has been quick to respond. Germany, Australia, Brazil, Canada, Hungary, Uganda, the Czech Republic and Austria have all called on the ICC to throw out the proceedings on the basis that Palestine does not meet the most elementary criteria of statehood, leaving the court with no jurisdiction whatsoever. The US Congress has sent letters to US Secretary of State Mike Pompeo, calling upon him to combat the ICC’s anti-Israel bias and remind the ICC that the establishment of a Palestinian state is simply not within their purview. Bensouda, however, has not been deterred, and her actions are a major threat to Israel. If she proceeds, she may be able to subpoena and interrogate senior Israeli politicians and military officers, even issuing warrants for their arrest should they refuse to cooperate.

Eugene Kontorovich, director of International Law at the Jerusalem-based Kohelet Policy Forum and director of the Center for International Law in the Middle East at George Mason University in Washington DC, says this: “Bensouda has come to the absurd decision that a non-country can sue a non-member of the ICC for a noncrime that nobody has ever been prosecuted for, and which the ICC prosecutor herself has said does not exist [as a prosecutable crime] when it came to [similar accusations against] Russia and Crimea or Turkey and Cyprus.”

“This,” says Kontorovich, “is not international law; it’s politics.” And politics, I might add, at its very worst.

Dan Diker, senior fellow at the Jerusalem Center for Public Affairs, in issuing a similar report on the ICC, said it best: “The ICC is nothing but an extension of the Palestinian leadership political-warfare strategy. It is a tool of war. Period.”

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