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ICC ruling mangles international law to indict Israel

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Posted on: 
18 Feb 2021
ICC ruling mangles international law to indict Israel

There is an old adage in the legal profession that “bad cases make bad law.”

And the International Criminal Court in the Hague has recently proven once again that the world community is far too easily willing to stretch and twist international law beyond recognition to satiate Palestinian animus towards Israel, most assuredly to the detriment of us all.

Two weeks ago, the ICC ruled that it had jurisdiction to open a probe of possible war crimes committed by Israel in the territories of “Palestine” – by which it meant Gaza, the West Bank and eastern Jerusalem. This was a highly biased and outrageous move which has even opened up the Court to justifiable accusations of antisemitism, as was asserted by Israeli Prime Minister Benjamin Netanyahu in his immediate response.

Truly, this ruling is prejudiced and absurd on its face. The ICC was set up as a permanent tribunal to try war crimes and crimes against humanity which shock the conscience of the world. But it was intended as a “court of last resort,” to step in only when a member state passed on jurisdiction to it. If a country is not a party to the Rome Statute which established the ICC, or if it is already willing and able to investigate and try these cases within its own judicial system, then the Hague court cannot unilaterally assume non-consensual jurisdiction.

Here, Israel is not a member of the ICC and it does have serious, proactive judicial mechanisms in place to try such crimes. Meanwhile, the Palestinians do not qualify as a sovereign state under the Rome Statute governing the Court. Therefore, the Court has no legal standing or authority to investigate and charge Israel with war crimes in the so-called ‘occupied territories’.

So what we are witnessing is an overzealous chief prosecutor, Fatou Bensouda, convincing the Court to bend and mangle international law to empower her quest to indict Israelis on invalid and unsustainable charges. This is happening even while the ICC is overlooking daily war crimes being committed by brutal regimes like Iran and Syria against their own people. Yet the ICC wants to prosecute Jews for building homes in Jerusalem as if they were Nazi war criminals.

Further, this ruling did not happen overnight. It is part of a wider Palestinian diplomatic agenda that has been progressing in United Nations organs ever since the 2001 Durban conference to delegitimize, demonize and dismantle the Jewish state.

In terms of the ICC, it has been building for the past 5-to-6 years, ever since Bensouda began pursuing it in earnest following the Hamas rocket war with Israel in 2014. It reflects the access and influence which the Palestinians and their global allies have in UN organs. And sadly, they have a large, effective network of pro-Palestinian NGOs and human rights groups which constantly pressure UN bodies to take actions against Israel – a network that is funded in large part by the European Union and some of its member states.

Here is a brief timeline of the ICC’s decisions on this probe, which demonstrates they were conducting a direct ‘dialogue’ with the Palestinians on investigating Israel.

In January 2015, in the wake of the third rocket war which Hamas launched against Israel along the Gaza border, ICC chief prosecutor Fatou Bensouda opened at the Palestinians’ request a preliminary examination into the situation in “Palestine.”

In December 2019, after several years of gathering evidence from partisan pro-Palestinian sources, Bensouda announced there was a reasonable basis for opening a war crimes investigation against Israel.

In May 2020, the ICC asked the Palestinian Authority for clarification on a declaration by PA president Mahmoud Abbas that the Palestinians were no longer bound by and would no longer abide by the Oslo agreements signed with Israel.

In June 2020, the PA clarified that it regarded itself as absolved of all agreements with Israel, but they did not deem this to affect the case they were building against Israel at the ICC.

Three days later, Bensouda agreed that Abbas’ declaration had no influence on the status of Palestine as a member of the Rome Statute.

Then on 5 February 2021, a pre-trial panel of three judges (by a slim 2-to-1 margin) ruled that the ICC did in fact have jurisdictional authority over the territories occupied in 1967, including Gaza, West Bank and eastern Jerusalem, and could open a war crimes probe against Israel (and Hamas).

This ICC ruling represents a significant and troubling advance on three key prongs of the long-term Palestinian agenda against Israel.

1) They seek to gain recognition of a Palestinian state outside direct bilateral talks with Israel.
“Palestine” is not a sovereign state, but it has managed to gain observer status in UN forums, and even achieved recognition as a state in some UN organs – including now the ICC.

2) They seek to undermine Israel’s legitimacy and in particular its right of self-defense.
This move would allow the ICC to try Israeli leaders and military figures for war crimes, and thus it is intended to strip Israeli authorities of the means to defend its citizens. In this regard, Bensouda has specifically referenced the 2014 Gaza conflict and the 2018 ‘March of Return’ riots as instances in which she has reason to believe Israel committed wars crimes. In truth, Israel’s leaders simply sought to protect its civilian population from deliberate armed attacks against them by a widely-recognized radical Islamic terror militia.

3) They seek to uproot the Israeli communities in Judea/Samaria by discrediting and now even criminalizing Jewish settlement activity. In response to the Nazi genocide against the Jews and their diabolical efforts to make Europe Judenrein, the international community set up the Fourth Geneva Conventions to prohibit many of the specific war crimes and crimes against humanity committed by Nazi Germany during World War Two. This includes a ban on the forced transfer of populations in or out of an occupied territory. But now, the Palestinians are hoping to turn this ban into a club against Israel.

War crimes and crimes against humanity are rightly seen as especially heinous violations of law and moral decency. They are considered so odious that there are no statutes of limitation for prosecuting them. Thus, we have seen Nazi war criminals hunted to their graves by the Simon Wiesenthal Center and others for decades. But now, the ICC would have us accept a perverse moral equivalence between what the Nazis did in forcefully transporting millions of Jews to their deaths, and the voluntary return of Jews to the heart of their ancient biblical homeland, including Jerusalem.

On the contrary, this will never be acceptable! Thus, all of Israel’s friends need to band together over coming months to urge those states who are members of the ICC to reject and rescind this outrageous decision.

David Parsons is an author, attorney, journalist, and ordained minister who serves as Vice President and senior spokesman for the International Christian Embassy Jerusalem;