Why Israel Cannot Expect Fair Treatment at the ICC

The International Criminal Court, The Hague, Netherlands. Photo: Wikimedia Commons.

It has been suggested by some that an International Criminal Court (ICC) investigation will treat Israel fairly, and hold Palestinian terrorists accountable. But the political nature of the ICC and Israel’s past treatment in similar situations should erase any such naïve hope.

The ICC Is a Political Institution 

The idea that the ICC is guided by the law, rather than being a fundamentally political institution, must be dispelled. In its recent decision claiming jurisdiction over Israelis, the Court said it could treat “Palestine” as a state because, in short, the UN gave “Palestine” the status of “non-member observer State.”

Instead of examining the legal consequences of the British Mandate or international legal principles like uti possidetis juris that would expose the myth of an “occupation,” the majority simply wished away its problems by bestowing upon the hyper-political UN General Assembly the sudden and consequential ability to make legally binding pronouncements.

Let us be clear. Legally speaking, UN resolutions are meaningless in this context. Morally speaking, why would anyone rely on the judgment of a body that once declared “Zionism is racism”?

The ICC’s very founding was steeped in politics. The diplomatic conference that created the ICC was described by the US representative as a “mysterious, closed-door and exclusionary process of revision” resulting in a “‘take it or leave it’ text for a permanent institution of law [that] was not subjected to … rigorous review.”

When the US sought to introduce an amendment to address a serious flaw in the ICC’s statute, it was ambushed by a backroom plot between the conference chairman and a handful of diplomats to prevent states from even voting on the amendment. Significantly, that amendment would have forbade the exercise of jurisdiction over non-state parties like Israel.

Moreover, the “crime” of which Israel stands most accused of was also borne out of political games. During the conference, Arab states successfully changed the language regarding the war crime of “transfer” by adding the word “indirectly” to the ICC’s statute. The original Geneva Convention language on this topic was meant to address situations like the mass deportations performed by Nazi Germany. Naturally, Israel’s enemies couldn’t let pass the opportunity to paint Jewish settlers as the new Nazis.

Consequently, even if the ICC was truly composed of upstanding legal professionals, they are nonetheless playing a political game rigged against Israel.

History as a Warning 

In 2004, Israel was similarly dragged before another court, the International Court of Justice (ICJ), with another dubious claim of jurisdiction. It concluded that Israel’s security barrier was illegal.

As many critics rightly pointed out, the ICJ’s opinion blithely cast aside crucial historical context and basic concepts of international law. Like the ICC earlier this month, it chose to uncritically accept what the UN had to say, notwithstanding its infamously one-sided demonization of Israel.

Instead of contending with language in its own statute implying only actual UN member states (and international organizations) could participate in the proceedings, the ICJ simply avoided the question. It pointed to a UN resolution that gave “Palestine” observer status and called it a day (sound familiar?) — as if there was no difference between “observer” and “member state.”

The most egregious example of the ICJ’s perversion of international law was that in declaring the “illegality” of Israel’s security barrier — built in response to the wave of suicide bombings that had been literally ripping apart thousands of Israeli men, women, and children – the ICJ simply claimed Israel had no right of self-defense.

Its reasoning was that “the attacks against it have not come from a foreign state,” a rather ironic statement given the recent ICC ruling. Would anyone seriously argue the US lost its right to self-defense because the attacks on 9/11 happened to come from Al-Qaeda instead of a foreign state?

Take a step back and note the inherent inconsistency.

As one of the separate opinions in that case read, “Palestine cannot be sufficiently an international entity to be invited to these proceedings, and to benefit from humanitarian law, but not sufficiently an international entity for the prohibition of armed attack on others to be applicable. This is formalism of an uneven-handed sort.”

This is the clear lesson for Israel in dealing with international institutions like the ICC. Israel can only expect uneven-handed treatment, and it must act accordingly. To expect otherwise is to expect the sun to rise in the west and set in the east tomorrow.

The author is a lawyer who works as a research fellow at Human Rights Voices.

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Author: David M. Litman

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