ICC injustice

There are a number of problems with the ICC, but its most fundamental is its inability to differentiate between good and bad.

By
January 18, 2015 22:44
3 minute read.
The Hague

The entrance of the International Criminal Court (ICC) is seen in The Hague. (photo credit: REUTERS)

The International Criminal Court could have been a transformative body.

Imagine autocrats such as Bashar Assad, who has used chemical weapons to kill hundreds – if not thousands – of Syrians, being hauled before a court of law and sentenced for war crimes. Imagine Iranian mullahs, Saudi theocrats, Taliban terrorists in Afghanistan and Pakistan charged with crimes against humanity for the persecution of homosexuals, Christians, political dissidents, and women. Imagine genocidal leaders like Sudanese President Omar al-Bashir not just indicted by the ICC for attempting to wipe out the Fur, Masalit, and Zaghawa tribes, but also thrown in the dock at The Hague and sentenced to an interminable prison sentence.

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Such an ICC would not just inspire hope that no gross injustice – genocide, war crimes, crimes against humanity – goes unpunished. By providing an objective international forum for adjudicating injustices, a functioning ICC would also mitigate the horrible sectarian scars resulting from extra-judicial executions such as that of Muammar Qaddafi or of Uday and Qusay Hussein, the sons of Saddam.

More importantly, orderly court proceedings enable the prosecution to articulate the criminal charges and empower the victims, while the defendant is forced to confront his crimes publicly. The 1961 trial in Jerusalem of Adolf Eichmann, which included hundreds of testimonies by survivors that were broadcast on radio, led to a national catharsis in Israel.

Unfortunately, none of this has happened. There are a number of problems with the ICC, but its most fundamental is its inability to differentiate between good and bad.

There is no other way to understand ICC prosecutor Fatou Bensouda’s decision Friday to initiate a preliminary probe into purported “war crimes” perpetrated by the IDF during Operation Protective Edge. ICC prosecutors said they would examine crimes that might have occurred since June 13, which is right before Israel launched a military offensive against Hamas in Gaza Strip to stop rocket fire directed against Israel’s civilian population and destroy dozens of attack tunnels that could be used to smuggle armed terrorists into Israel to murder civilians. Interestingly, June 13 is one day after three Israeli teenagers were kidnapped and murdered by Palestinians affiliated with Hamas.

Bensouda had to overcome a number of obstacles, both technical and moral, to arrive at her decision to scrutinize Israel. First, she had to accept that “Palestine” has the status of a state. Only crimes that take place within the territory of states that accept the ICC’s jurisdiction can be tried, unless the case is referred to the ICC by the UN Security Council, which rarely happens.

Next, Bensouda had to reach the conclusion that Israel’s own justice system was inadequate or not dealing properly with allegations made by Palestinians in Gaza and the West Bank of purported war crimes. Under the principle of complementarity, the ICC is not supposed to act if a state has a legal system in place that is willing and able to investigate and, if necessary, to prosecute.

Finally, and most significantly, Bensouda had to ignore the fact that Hamas is a recognized terrorist organization whose official political charter contains The Protocols of the Elders of Zion and advocates the genocide of the Jews living in Israel and that Hamas, practicing what it preaches, purposely targets Israeli civilian populations with rockets, snipers, and armed terrorist cells that repeatedly attempt to infiltrate Israel.

The Gambian prosecutor Bensouda has a track record of singling out democracies for scrutiny. In December, she disclosed that she is “assessing available evidence” on “enhanced interrogation techniques” supposedly practiced by US forces in Afghanistan, an ICC member state.

No matter that these techniques were used by the Central Intelligence Agency, a government agency, and not in Afghanistan. Nor did Bensouda seem to care that the US has a fully functioning legal system competent enough to deal with claims of criminality.

It should be no surprise that the list of 122 countries that have submitted to ICC jurisdiction does not include the US or Israel. These two countries rightly want to protect their military personnel from politically driven legal prosecution facilitated by the ICC.

Tragically, a judicial body that could have been a force of good has not only proved ineffectual at fighting evil, it has been taken over by an anti-Western agenda that has led it to confuse good with evil.


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