Think about it: Israel and the ICC

The final status of the West Bank (or Judea and Samara) and Gaza Strip can only be determined in a permanent settlement between Israel and the Palestinians.

PRIME MINISTER Benjamin Netanyahu has opposed the International Criminal Court’s investigation. (photo credit: REUTERS)
PRIME MINISTER Benjamin Netanyahu has opposed the International Criminal Court’s investigation.
(photo credit: REUTERS)
Last week I wrote about the sloppy reporting about the resolution of the French National Assembly on antisemitism. In the course of the last week the phenomenon repeated itself with regard to the decision of Chief Prosecutor of the International Criminal Court in The Hague Fatou Bensouda from Gambia, to open an investigation regarding alleged war crimes committed in Palestine, i.e. the West Bank, east Jerusalem and the Gaza Strip by Israel, the IDF, as well as the “Hamas and Palestinian armed groups.”
So much disinformation has been spread in the media and by members of the government on this subject that it is difficult to decide where to begin.
The court we are talking about is the International Criminal Court (ICC), an intergovernmental organization and international tribunal established in 2002 on the basis of the Rome Statute of 1998. It has jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes and crimes of aggression. It is intended to complement existing national judicial systems and it may therefore exercise its jurisdiction only when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the UN Security Council or individual states refer situations to the Court.
Despite its initial support for the idea of the court, Israel did not ratify the Rome Statute after an article was inserted into the statute defining a transfer of the population of an occupying nation to occupied territory as a war crime, and consequently it is not a member of the court.
On Sunday, December 22, Prime Minister Benjamin Netanyahu stated in the government meeting that the ICC had been established after the Second World War and the Holocaust, “to deal with problems raised by states against war crimes, such as genocide and mass expulsions” which occurred “in states that do not have real legal systems by law, such as those that exist, of course, in the Western world”.
Well, as stated above the ICC was established in 2002. The court Netanyahu was referring to is the International Court of Justice (ICJ), also in The Hague, which is the principal judicial organ of the UN, and has nothing whatsoever to do with the current investigation. The ICJ’s primary functions are to settle international legal disputes submitted by states, and give advisory opinions on legal issues referred to it by the UN. The ICJ is the successor of the Permanent Court of International Justice (PCIJ), which was established by the League of Nations in 1920.
After the Second World War, both the League and the PCIJ were succeeded by the UN and ICJ, respectively. The establishment of the ICJ was not directly connected to the Holocaust. Through its membership in the UN Israel is also a member of the ICJ.
Netanyahu attacked the court responsible for the current investigation for not dealing with other countries, just with Israel, even though in her report Bensouda mentioned a long list of countries against which investigations were opened (not a very honorable list). The reason some other countries (e.g. Turkey) known to be responsible for war crimes have not been investigated is not because the ICC ignored their crimes, but because no state brought charges against them. Of course, the question is whether Palestine, which brought the charges against Israel and the IDF, is a state. Bensouda claims that it is unquestionably a state. Israel denies this claim.
NETANYAHU ALSO attacked the prosecutor’s decision to act “against the right of the Jews to settle in the homeland of the Jews, and turn the fact that Jews live in their country into a war crime.” No, the prosecutor did not deny the right of Jews to settle in the sovereign territory of the State of Israel, only in those territories that are not recognized by the international community as constituting part of the sovereign territory of Israel, and are considered occupied territory.
The final status of the West Bank (or Judea and Samara) and Gaza Strip can only be determined in a permanent settlement between Israel and the Palestinians. Even the Americans say so, despite Secretary of State Mike Pompeo’s announcement on November 18 that the US Administration does not see Israeli settlements as inherently in violation of international law.
At least one can draw comfort from what Netanyahu stated with regard to the ICC’s authority to investigate alleged Israeli crimes that since Israel is “run in accordance with the highest legal standards of the Western democracies,” the ICC has no such authority. Does this also mean that Netanyahu has no complaints about the legal system also when it comes to his own indictments? Incidentally, Bensouda wrote in her report that the question whether Israel can be trusted to investigate itself for the allegations against it is still being examined. I believe the answer is that Israel does not evade investigating itself, but that, as an understatement, not all these investigations end up uncovering the whole truth.
Among the bitter complaints that are being made against Bensouda’s report is that she only raises accusations against Israel. Well, as mentioned in the opening paragraph on page 53 the following is written: “In addition, there is a reasonable basis to believe that members of Hamas and Palestinian armed groups (“PAGs”) committed the war crimes of: intentionally directing attacks against civilians and civilian objects...; using protected persons as shields...; willfully depriving protected persons of the rights of fair and regular trial... and willfully killing, and torture or inhuman treatment, and/or outrages upon personal dignity.”
In other words, Hamas and other Palestinian armed groups are accused of war crimes both against Israelis and Palestinians. The report adds that “the Prosecution has concluded that the potential cases concerning crimes allegedly committed by members of Hamas and PAGS, would currently be admissible pursuant to article 17(1)(a)-(d) of the Rome Statute.” Article 17(1)(a) states that the court is authorized to investigate a state that “is unwilling or unable genuinely to carry out the investigation or prosecution” against such persons.
Now, it is quite possible that the ICC is not partial when it comes to Israel, and therefore Israel has every right to do everything in its power to prevent the case against it from coming up before the court, even though some of the charges against it might well be legally founded.
However, both Israel and the media should be careful with flimsy attempts to portray the ICC as antisemitic and even anti-Zionist, and that Fatou Bensouda herself as being responsible for crimes against humanity (as some have done), at the time that she served as Minister of Justice of Gambia in the years 1998-2000, when the dictator Yahya Jammeh was president and his regime was notorious for its corruption, authoritarian methods and systematic breach of human rights.
It is said that Bensouda was fired in 2000 due to her support of human rights groups in Gambia. Jammeh himself left power and Gambia under duress in 2017, and there are good chances that he will find himself brought to trial before the ICC. Back in January 2016, Israel’s newly accredited (non-resident) ambassador to Gambia, Paul Hirschson, actually met Jammeh for an hour-long chat.
Let’s watch our step.