The seemingly biased decision of the International Criminal Court (ICC) in The Hague (Netherlands), to investigate Israeli actions during the 2014 Gaza War, prompted a sharp reaction from Israel’s Prime Minister Benjamin Netanyahu. Prime Minister Netanyahu observed in his statement that Israel (as well as the US) is not a member of the ICC. He stated that, “Today the Court (ICC) proved once again that it is a political body and not a judicial institution.” He added, “The Court ignores real war crimes and instead persecutes the State of Israel, a state with a firm democratic government which sanctifies the rule of law, and it is not a member of the Court.”
The US State Department also reacted to the political nature of the ICC determination. A pretrial chamber of the ICC determined on Friday, February 5, 2021 that it has jurisdiction to probe Israel and Hamas on the 2014 Gaza war, as well as Israel’s settlement policy, and Israel Defense Forces (IDF) actions on the Gaza border.
Ned Price, the State Department spokesperson tweeted that, “The US objects to today’s ICC decision regarding the Palestinian situation. Israel is not a State party to the Rome Statute. (The ICC was established in 2002 in Rome).” Price added, “We will continue to uphold President Joe Biden’s strong commitment to Israel and its security, including opposing actions that seek to target Israel unfairly.”
The decision of the ICC is a precedent-setting one, and it comes more than a year after ICC prosecutor Patou Bensouda requested the Court to confirm its jurisdiction in this case. This case is essentially the Court’s way of appeasing the Palestinians, and the dominant Arab-Muslim bloc at the UN. Naturally, the Palestinians have hailed the decision as a victory. Israel, on the other hand, excoriated the decision as a contentious political move without a valid legal basis.
In a subsequent video statement, PM Netanyahu charged that, “When the ICC investigates Israel for fake war crimes – this is pure anti-Semitism. The Court was established (by Benjamin Ferencz, a Jewish-American prosecutor at the Nuremburg trials following WWII and the Holocaust) to prevent atrocities like the Holocaust against the Jewish people, and is now targeting the one state of the Jewish people. First, it outrageously claims that when Jews live in our homeland, this is a war crime. Second, it claims that when democratic Israel defends itself against (Hamas) terrorists who murder our children and rocket our cities – we are committing another war crime. Yet, the ICC refuses to investigate the brutal dictatorships like Iran and Syria, who commit horrific atrocities almost daily.” Netanyahu concluded, “We will fight this perversion of justice with all our might.”
The ICC decision came in a two-to-one vote. The French and Benin justices voted to investigate; the Hungarian Justice was against it. In the 60-page report, the Court ruled that Palestine qualifies as a state on territory of which the conduct in question occurred. The Court maintained that it has “territorial jurisdiction in the situation in Palestine extends to the territories occupied by Israel since 1967, Gaza and the West Bank, including East Jerusalem.”
While Israel could argue its case on this matter to the ICC, it has chosen not to do so. Israel believes that the Court has no legal or moral authority to carry out the investigation. One of Israel’s arguments in rejecting the ICC claim of jurisdiction on this matter is that there is no sovereign Palestinian state that could delegate to the court criminal investigation over its territory and nationals. In the meantime, Israel’s Foreign Ministry charged that the ICC getting involved in the Israeli-Palestinian conflict is, driving the parties further apart. It comes just when the Palestinian Authority has resumed security coordination with Israel. Israel’s Justice Ministry termed the ICC decision to intervene as “harmful and superfluous.”
It is worth emphasizing that when Benjamin Ferencz dreamed up the International Criminal Court of Justice, he had in mind Nazi Germany’s atrocities against Jews and others. As part of the prosecution staff at the Nuremburg Trials against Nazi criminals, he never envisioned that his ICC would seek to prosecute a country like Israel, its government leaders, and the Israel Defense Forces for protecting its civilian population against murderous Palestinian terrorists who target women and children.
Ferencz’s idea in founding the ICC was to investigate, and where warranted, put on trial individuals charged with the gravest of crimes including genocide, war crimes (deliberately murdering the innocent), and crimes against humanity. Israel, in its Gaza wars against Hamas terrorists, has done what no other army has done before it. It warned civilians to evacuate where it intended to operate. It provided an advantage for Hamas, and put in danger Israeli soldiers. Moreover, Israel has reacted to crimes committed against its people, but never deliberately initiated attacks on Palestinian combatants, let alone civilians. Israel’s military actions are in self-defense, not aggression. This is why the ICC action is scandalous.
Keeping in mind the ICC anti-Israel bias, and with a clear message to the Court, Israel’s Chief-of-Staff, Lt. Gen. Aviv Kochavi, revealed Israel’s strategy and operating methods at a conference held last month at Tel Aviv University Institute for National Security Studies. Kochavi, appealing to Lebanese and Gazan civilians in whose homes long-range missiles are stored, suggested that they should evacuate their homes as soon as a conflict or an escalation begins. He assured those civilians that the IDF would give them advance warning and time to leave their homes before unleashing deadly force aimed at the Hezbollah terrorists in Lebanon, and Hamas and Islamic Jihad in Gaza.
This clear and explicit warning to the civilian populations following the next confrontation in Gaza or Lebanon is meant to insure that IDF officers or Israeli politicians are not held responsible by the ICC for Israeli retaliatory action in Gaza or Lebanon. It puts the ICC on notice that Israel has provided the civilian population with an appropriate and timely warning in accordance with international law. Kochavi made it clear that the IDF would not violate the rules of international law as part of such action.
Israel cannot afford to allow any international body, including the ICC, to compromise its security particularly in urban areas where Hezbollah and Hamas hide their missiles and rockets aimed at Israeli civilians. This compromise applies equally to the US troops in Afghanistan and Iraq. This is why the Biden administration was quick to condemn the ICC decision. The ICC is clearly attempting to tie the hands of democratic governments from operating against the malign forces of terror while deliberately overlooking the most heinous crimes committed by Iran and its subsidiaries as well its allies in Gaza, Iraq, and Syria.
The bottom line is clear – the ICC is essentially a kangaroo court.
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