International Criminal Court (ICC) chief prosecutor Fatou Bensouda announced last Friday that her office had concluded there was a reasonable basis for proceeding further with investigating alleged war crimes committed by Israeli forces against the Palestinians. Prosecutor Bensouda also targeted Israel’s settlement policy in the West Bank as a possible war crime. She added mention of possible war crimes by Hamas and other armed Palestinian groups against civilians as window dressing.
Before formally pursuing the probe, Ms. Bensouda intends to ask the ICC tribunal to rule on jurisdictional issues. Israel is not a member of the ICC. However, leveraging the decision of the United Nations General Assembly to bestow Palestine with the title “Non-Member Observer State,” the Palestinian leaders decided to join the ICC, which accepted its application with open arms. The Palestinians then exercised their so-called “right as a State Party to the Rome Statute” to refer the “Situation of Palestine” for immediate investigation to the ICC prosecutor, who had previously opened an informal “preliminary examination” on her own initiative.
The prosecutor’s appearance of even-handedness in claiming to look at the conduct of both sides is a sham. Her anti-Israel bias is evident. “Despite avoiding the Israelis,” the Times of Israel reported, “Bensouda met several times with Palestinian organizations ahead of the decision, with the most recent meeting occurring roughly two weeks ahead of the announcement.”
Israeli Prime Minister Benjamin Netanyahu accused the ICC of becoming “a weapon in the political war against Israel.”
Israel’s ambassador to the United Nations, Danny Danon, said in statement, “The prosecutor’s decision in the International Criminal Court reflects the anti-Israeli tendency rooted in The Hague; the institution is becoming nothing more than another partisan political tool to wield against the Jewish State.”
U.S. Secretary of State Mike Pompeo said, “We firmly oppose this and any other action that seeks to target Israel unfairly. We do not believe the Palestinians qualify as a sovereign state, and they therefore are not qualified to obtain full membership, or participate as a state in international organizations, entities, or conferences, including the ICC.”
To begin with, Palestine is indeed not a genuine state that should deserve legitimate recognition as such by a truly neutral international court. Given the Palestinian Authority’s continuing split with Hamas which controls Gaza, the Palestinian Authority is a dysfunctional entity without full control under a unified government of the territory or population it claims comprises the “State of Palestine.” However, such basic facts do not matter to the ICC prosecutor. The Israel-bashing General Assembly declared a special status for the Non-member Observer “State of Palestine,” so it must be so.
Even putting aside the Palestinians’ dubious claim to statehood and the fact that Israel itself is not a state party to the ICC’s Rome Statute, the ICC still lacks jurisdiction. It would be interfering into what is essentially a political territorial dispute that needs to be resolved by Israel and the Palestinians in direct negotiations. Pursuant to UN Security Council Resolution 242, which remains in force, Israel was only expected to withdraw “from territories” to “secure and recognized boundaries.” Not from all territories. Those boundaries were to be the subject of direct negotiations between Israel and the Palestinian leadership. The ICC does not have the legal authority to make judgments based on territorial parameters claimed only by one side to the controversy before it. It makes no legal difference what the UN General Assembly and Security Council have tried to do since the passage of Resolution 242 to unfairly tilt the scales in the Palestinians’ favor.
Moreover, it is illegitimate for the ICC to take jurisdiction over a matter involving Israel’s actions taken in self-defense. Israel is only responding to Hamas’s call for Israel’s annihilation and its rocket launches from the Gaza territory that it controls against civilians in Israel. This is particularly the case when the ICC has refused to accept jurisdiction over the mass murders in Syria, where the number of Syrian civilian casualties at the hands of Syrian President Assad and his henchmen far exceeds the number of Palestinian casualties.
As to the violence resulting from Palestinian protests in and around the Gaza border fence with Israel that the ICC prosecutor has also seized upon to make her case, Hamas, not Israel, has effective control of the Gaza side of the border fence. Hamas has used that control to instigate violence across the border with Israel rather than trying to contain it. Israel does not have its own security forces in place on the ground in Gaza to stop, as a law enforcement matter, the Hamas-instigated violence there and attempts by Palestinian militants to illegally cross into Israel en masse. Thus, the Israeli military has no choice but to deal with Hamas and other Palestinian terrorist groups as hostile forces in the context of an armed conflict. As opposed to the body of strict international human rights law governing law enforcement by an “occupying” force, the body of international law governing the use of force against combatants and even civilians thrust into a combat situation are more permissive.
Most importantly, under the ICC’s principle of complementarity the ICC should step aside. Complementarity involves ICC deference to national institutions fully capable and willing to handle in a genuine fashion the potential cases being considered for investigation by the ICC prosecutor’s office. Israel’s judicial system is robust, independent, and perfectly capable and willing to investigate and prosecute Israelis accused of the international crimes alleged by the Palestinians.
Finally, two can play the same game. In addition to examining Hamas’s alleged war crimes as the ICC prosecutor has suggested, she must expand her investigation to include the systematic pattern engaged in by Hamas and other Palestinian members of terrorist armed groups involving rocket attacks, suicide bombings and murders of Israeli civilians via vehicles, knife attacks and gunfire. These acts easily fit within the definition of the separate crime of “Aggression” over which the ICC has jurisdiction. Moreover, charges can be filed on behalf of aggrieved parties against Palestinian Authority President Mahmoud Abbas and other Palestinian Authority and Hamas leaders for using torture and arbitrary arrests to quash dissent by peaceful political opponents residing in the territories within Palestinian administrative control. It will not be difficult at all to prove the absence of any independent Palestinian judicial system, as measured under normal international standards, that is capable of anything approaching a credible national investigation and prosecution.
Israel and its chief ally the United States cannot simply shrug off the ICC. Robust defense and offense strategies to counter the Palestinians’ use of lawfare against Israel are a must.