The ICC and the antisemitism critique - opinion

The ICC may be antisemitic and / or biased against Israel, but accusing it of such is not the most efficient way to approach the ICC strategically.

International Criminal Court is seen in The Hague, Netherlands September 27, 2018 (photo credit: REUTERS/EVA PLEVIER)
International Criminal Court is seen in The Hague, Netherlands September 27, 2018
(photo credit: REUTERS/EVA PLEVIER)
A regular feature of commentary of the work of the International Criminal Court (ICC), whether it be decisions of the office of the prosecutor or decisions by the judges, it to consider that some of its decision-makers or even the institution as a whole would be antisemitic.
For example, following the prosecutor’s decision last December to seize the Pre-Trial Chamber with a request to determine the territorial parameters of an investigation in “the Situation of the State of Palestine,” Prime Minister Benjamin Netanyahu denounced the “antisemitic edicts by the International Criminal Court”, a position also expressed at the time by former defense minister Naftali Bennett, who apparently stated that “The Hague is the workshop of modern antisemitism.”
This criticism might be true. However, we would argue, respectfully, that this is not the most efficient way to approach the ICC strategically. Indeed, the antisemitism label is a way to refuse to analyze the substance of any decisions coming from the court; is a way to delegitimize from the start any pronouncement by the judges; and therefore is a way to avoid any examination of what they would say. This is ultimately a way to disqualify, ab initio, the ICC as an institution. In other words, the use of the concept of antisemitism is a diversion to avoid any meaningful reflection of the reality that is the ICC and the reality of what is discussed there.
Once one puts aside the concept of “antisemitism” as a strategic tool, what remains is the idea that the ICC, its judges and its prosecutor would have an anti-Israel bias, namely that they are necessarily going to issue decisions that would go against Israel’s interests specifically because they are biased against Israel.
Here too, we would argue that this position, whether true or not, is not the most efficient starting point to deal with the ICC. As with the antisemitism label, presuming a bias is a way to not engage with the ICC or the content of its decisions.
Alleging a bias is also confusing two very different things: the ICC as a judicial institution and the use of the ICC by those who truly would indeed have a bias against Israel to attack Israeli legitimacy. This confusion ignores the nature of the ICC, which, as we have argued in the past, cannot be seen as a monolithic institution – judges regularly disagree among themselves and with the prosecutor. Moreover, one should not underestimate the power of process which, by giving a procedural voice to all interested parties enables a certain level of transparency and accountability in the judicial decision-making process. Ultimately, alleging a bias of the ICC itself has the following counter-productive effect: that of abandoning the narrative battle ground to those who would use the ICC to advance an anti-Israel agenda.
Which brings us to the more relevant framework of analysis: the general context in which the ICC operates. There are two important points to be made in that respect.
First of all, there is no denying that there will exist in certain international bodies, in certain NGOs and among some media outlets (as noted recently by Matti Friedman) an anti-Israel bias that can indirectly shape the way the ICC addresses certain factual and legal matters. An obvious example which we have elaborated on in the past is how the illegality per se of settlements narrative, prevalent at the UN, has an impact on future litigation at the ICC. This context must be taken into account when dealing with the ICC specifically.
Second of all, there is what could be called a broader human rights bias in international conversations today, structured around the “fight against impunity,” which equates the existence of allegations and actual guilt, with often little concern for due process. This bias is particularly prevalent in international criminal law advocacy and is for example illustrated by the global reactions of outrage when there is an acquittal at an international criminal tribunal, as if such an acquittal was per se an illegitimate result.
This latter bias is most certainly the most important challenge for those practicing before international criminal tribunals. But it is crucial to understand that is applies to all situations, and all cases, not just Israel. In this sense, it would be wrong to reduce it to an anti-Israel bias, because it shows a lack of understanding of how international tribunals and more particularly the ICC operate. It leads to a very concrete rather than theoretical problem: the defense at an international tribunal starts with a handicap. However, this handicap can be overcome. The whole point of a robust and professional strategy is to patiently and systematically reveal the weaknesses of the narrative put forward by the prosecutor and provide the judges with a more factually and legally accurate counter-narrative. To achieve this result, the procedural guarantees enshrined in the Rome Statute of the International Criminal Court should be seen as opportunities, when used to the full, rather than obstacles.
This is the strategy that should be adopted vis-à-vis the ICC: take it seriously without refusing to confront the reality of the context in which it operates. This requires a dynamic strategy of action, whereas attacking the court for its antisemitism or anti-Israel bias, while giving the impression of going on the offensive, in fact promotes a strategy of inaction, equivalent to putting one’s head in the sand, hoping the ICC would just go away. Such passive strategies are rarely successful.
Emmanuel Altit is lead counsel at the International Criminal Court and Jennifer Naouri is counsel at the International Criminal Court.