by Prof. Eytan Gilboa
Israel should discredit and delegitimize the ICC in turn via aggressive political measures and collaboration with concerned liberal democracies
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| Fatou Bensouda, chief prosecutor of the International Criminal Court, photo by Stephan Röhl via Flickr CC |
BESA Center Perspectives Paper No. 1,386, December 30, 2019
EXECUTIVE SUMMARY: Fatou Bensouda, the
chief prosecutor of the International Criminal Court (ICC) at the Hague,
has decided to indict senior Israeli policymakers and military officers
for committing war crimes in the West Bank and Gaza. Her decision is
baseless, preposterous, and discriminatory, and it violates the ICC’s
own mission and rules. Bensouda’s action should be placed within the
wider context of the Palestinian disinformation, delegitimization, and
demonization campaign against Israel at international organizations.
Israel should discredit and delegitimize the ICC in turn via aggressive
political measures and collaboration with concerned liberal democracies,
primarily the US.
On December 20, 2019, Fatou Bensouda, the chief
prosecutor of the International Criminal Court (ICC) at the Hague,
announced: “I am satisfied that war crimes have been or are being
committed in the West Bank, including East Jerusalem and the Gaza
Strip.” She referred to 2014’s Operation Protective Edge in Gaza, the
2018-19 Hamas’s violent “protests” along the Israeli border with Gaza,
and the Israeli neighborhoods in East Jerusalem and the West Bank. She
mentioned war crimes committed by Hamas and other Palestinian “armed
groups,” but that mention was no more than a fig leaf to create an
impression of neutrality. The object of her case—to target Israel for
demonization—is reflected in the enthusiastic praise she received for
her decision from the Palestinian Authority and Hamas.
Bensouda’s opinion is baseless, preposterous, and
discriminatory, and most importantly it violates the ICC’s own mission
and rules. The Court was established in 2002 to prosecute individuals
for international crimes of genocide, crimes against humanity, and
serious war crimes. The US and Israel did not ratify the Rome Treaty
that established the Court out of concern that it would be used to
deliver politicized and biased judgments. That concern has been proven
valid.
Bensouda’s action is a major threat to Israel. The
ICC prosecutes individuals, not states. Therefore, if its pre-trial
chamber of three judges accepts Bensouda’s request and rules that the
ICC has jurisdiction over the case, she will be able to subpoena senior
Israeli politicians and military officers for interrogation. If they
refuse to submit to interrogation, as they are likely to do, she could
issue warrants for their arrest.
The ICC is not a genuine court in that it does not
follow basic rules of judicial evidence and procedure. It is yet
another highly politicized UN body driven by a prejudiced political
agenda.
No jurisdiction
The main arguments against Bensouda’s decision are straightforward.
- Only sovereign states can file complaints. In 2015, the Palestinian Authority joined the Rome Treaty and several countries recognized Palestinian independence. Palestine is not, however, a sovereign state.
- Israel, like the US and about one-third of the countries in the world, did not join the ICC. The Court therefore has no jurisdiction over it.
- The ICC was established to deal with war crimes that leaders and countries ignore. Israel is a democracy and has one of the most respected legal systems in the world. Israel investigates cases of war crimes and prosecutes those responsible. In contrast, the Palestinian Authority and Hamas never investigate their own war crimes and never prosecute those responsible.
- The ICC was established to investigate and prosecute serious war crimes such as genocide. Crimes of this nature have occurred recently in the Middle East, such as those committed by the Syrian government, Russia, and Iran during the Syrian civil war. They murdered hundreds of thousands of civilians, turned half the population of Syria into refugees, and destroyed cities, towns, and villages. The ICC (and for that matter no other UN body) did nothing to stop these war crimes and does not appear to have any interest in prosecuting anyone for them.
- Contrary to Bensouda’s claims, the ICC is not an independent body, and her preliminary investigation was neither objective or neutral. The ICC depends entirely on the UN General Assembly for its funding and operations. In keeping with the strong anti-Israeli attitude of the UN and its agencies, the Court uses and follows the highly distorted, biased, and one-sided resolutions and reports produced on Israel by UN agencies.
Several liberal democracies have severely criticized Bensouda’s decision. US Secretary of State Mike Pompeo stated:
We firmly oppose this (decision) 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. The US also reiterates its longstanding objection to any assertion of ICC’s jurisdiction over nationals of States that are not parties to the Rome Statute, including the US and Israel, absent a referral from the UN Security Council or the consent of such a State.
Australian PM Scott Morrison said his country does
not recognize the “State of Palestine” or its status as a member state
of ICC and therefore believes the ICC has no authority on the matter.
Germany, a strong supporter of the ICC, issued a
more delicate warning. Its foreign ministry stated that it is
“confident that the court will resolve the issues raised. This will also
address issues of admissibility that may be doubtful.” The subtext is
clear: Germany does not believe the ICC has jurisdiction over the
Palestinian-Israeli conflict.
Context
Bensouda’s action should be placed within the
wider context of the Palestinian disinformation, delegitimization, and
demonization campaign against Israel. They employ three major
instruments: the UN and its agencies; NGOs, particularly those claiming
to advocate for human rights; and the Boycott, Divest, and Sanction
(BDS) movement. These instruments are interrelated and they reinforce
each other.
At the UN, the Palestinians enjoy automatic
support from Muslim countries, Russia, China, the EU, and developing
countries. As they have failed to defeat Israel through violence and
terrorism, they have opted to delegitimize and demonize Israel at the UN
and its agencies, portraying it as an evil, racist, and apartheid
state, the worst violator of human rights in the world—so vile that it
is devoid of the right to defend itself and even to exist.
Unfortunately, several international human rights
NGOs, including Human Rights Watch and Amnesty International, are
staffed by anti-Israeli directors and investigators, and they demonize
Israel via highly biased, distorted, and misleading reports. Israeli and
Palestinian human rights NGOs, too, disseminate distorted and sometime
fabricated reports, especially on the confrontations in Gaza. Those
organizations include B’Tselem, Breaking the Silence, Al Haq, Al-Dameer,
and Al Mezan. They are heavily funded by Western European countries on
condition that they frequently challenge the Israeli legal system and
provide the ICC and the UN Human Rights Council (UNHRC) with
incriminating information against Israel.
Refuting the Israeli war crimes thesis
While all Bensouda’s accusations against Israel
should be rejected on the basis of the legal and political arguments
discussed above, there is additional overwhelming evidence to dismiss
her allegations about Israel’s purported “war crimes” during military
confrontations with Hamas in Gaza. Bensouda claims her decision relies
on reports on these confrontations submitted to the UN, particularly
those initiated and approved by the UNHRC. That dysfunctional and
corrupt organization is dominated by authoritarian countries, some of
which are among the greatest abusers of human rights on earth. The UNHRC
is notorious for its bias against Israel. It has one agenda item just
for Israel and another for the entire rest of the world.
The UNHRC appointed several “independent”
commissions to investigate Israeli “war crimes” in Gaza. One
investigated 2014’s Operation Protective Edge and another the 2018-19
Gaza “protests.” Both relied on questionable and fabricated information
provided by local and international “human rights” organizations. The
first chair of the 2014 commission, William Shabas, resigned after
Israel found that he had previously worked for the PLO and was biased
against Israel. Among other things, he said before his appointment that
Israeli PM Benjamin Netanyahu should be indicted for “war crimes”
committed during the 2006 Second Lebanese War. (Besides his bias, Shabas
revealed just how much he really knows about Israel and the Middle East
with this charge. The prime minister of Israel during the 2006 war was
Ehud Olmert, not Netanyahu.)
The ICC’s investigators did not include anyone
with any military background or experience. However, several high-level
officers and officials with substantial military experience from several
countries investigated the cases cited in Bensouda’s opinion and
reached definitive conclusions that are completely at odds with her
claims.
In November 2014, following a fact-finding mission
to Israel, the Chairman of the US Joint Chiefs of Staff, General Martin
Dempsey, said that “in the 2014 Gaza conflict, Israel went to
extraordinary lengths to limit collateral damage and civilian
casualties.” In June 2015, the independent High-Level Military Group led
by General Klaus Naumann, former Chief of Staff of the Bundeswehr and
Chairman of the NATO Military Committee, and 10 other former chiefs of
staff, generals, senior officers, and officials from seven countries
investigated the 2014 Gaza operation. They unanimously stated:
Each of our own armies is of course committed to protecting civilian life during combat. But none of us is aware of any army that takes such extensive measures as did the IDF last summer to protect the lives of the civilian population in such circumstances… During Operation Protective Edge, in the air, on the ground and at sea, Israel not only met a reasonable international standard of observance of the laws of armed conflict, but in many cases significantly exceeded that standard.
Similarly, Col. Richard Kemp, former commander of
the British forces in Afghanistan, blasted and systematically refuted
the war crimes allegations and reports submitted to the UNHRC on the
2014 Gaza operation and the 2018-19 violent Gaza “protests.” He
submitted detailed reports based on research and observations on the
ground. He blamed Hamas for the violence and for war crimes and argued
that Israel exercised great restraint—and unlike Hamas, took exceptional
measures to adhere to the laws of armed conflict and to minimize
civilian casualties. He accused the UNHRC of endemic bias against Israel
and rejected the reports it had approved as totally wrong and baseless.
Both the UNHCR and Bensouda ignored all this diverse military expert evidence as it did not fit their agenda.
The US approach
In November 2017, Bensouda asked the ICC’s
pre-trial judges for an authorization to open an investigation into war
crimes allegedly committed by the US in Afghanistan. In September 2018,
NSA John Bolton called the ICC “unaccountable” and “outright dangerous”
to the US, Israel, and other allies. He threatened the ICC with
sanctions: “We will ban its judges and prosecutors from entering the US.
We will sanction their funds in the US financial system, and we will
prosecute them in the US criminal system.”
In March 2019, Pompeo warned
that the US would revoke the visas of ICC officials who pursued
allegations against US forces in Afghanistan or against Israel. On April
5, 2019, the US revoked Bensouda’s visa.
A few days later, the ICC’s pre-trial judges
rejected Bensouda’s request to open an investigation against the US by
arguing that it is likely to fail due to lack of cooperation from the
parties involved and budgetary constraints.
The judges were more concerned about losing their
entry visas to the US and about other American sanctions than about the
case itself. President Trump called the judges’ decision “a major
international victory” and denounced the ICC for its “broad,
unaccountable, prosecutorial powers,” as well as for what he considered
its threat to American sovereignty. He said, “Any attempt to target
American, Israeli or allied personnel for prosecution will be met with a
swift and vigorous response.”
What should Israel do?
Israel must fight the ICC through aggressive
political means. Bensouda joined those who delegitimize and demonize
Israel. The best response would be to delegitimize and penalize her and
the ICC via an alliance of countries under US leadership along the lines
adopted by the Trump administration. If the pre-trial judges approve
Bensouda’s request, Israel should ask the US to fulfill its commitment,
cancel the visas of Bensouda, the ICC judges, and its investigators, and
apply other severe sanctions against them.
Like the US and other countries, Israel should ban
entry by ICC investigators into Israel, the West Bank, and Gaza; pass
laws that protect Israeli officials and officers from ICC directives and
potential indictments; and sign bilateral agreements with states
refusing to comply with ICC orders and arrest warrants. Israel should
also consider sanctions against the Palestinian Authority, which, with
Bensouda’s help, started the ICC preliminary investigation. These steps
can help to expose the ICC’s complete lack of credibility or legitimacy.
Source: https://besacenter.org/perspectives-papers/israel-international-criminal-court/
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