ICC Absurdity

It seems the ICC has a comparative disinterest in investigating the criminal violations of anyone but Israel.

Avi Charney,

OpEds

While studying for my masters in international law at Hebrew University, there was always a hypothetical floating in the air: Could Israel be brought to stand trial at the International Criminal Court (“ICC”) in the Hague. Even if, in theory, Israel could be investigated by the court, all of my world renowned expert professors, didn’t believe that the court would approach the Israel-Arab issue with a ten foot pole. When the ICC opened a preliminary enquiry into alleged crimes "in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014", legal scholars were understandably perplexed.

As soon as the inquiry was announced, Israeli Prime Minister held a press conference calling the decision “absurd”, explaining how Israel has an “utterly independent judiciary” and how Israel, as a world leader in fighting terrorism, is absurdly having cases brought against it by Hamas, a terrorist organization, noting that the Islamic State, Hezbollah and Al Qaeda are taking notes and may soon follow suit. This is a manipulation of the ICC and a
Most puzzling about the ICC’s decision is the courts’ contravention of its very own admissibility requirements.
sick perversion of justice.

Bibi’s warning is but the tip of the iceberg. The full display of the absurdity of the ICC inquiry can be found by looking at the ICC’s own charter, the Rome Statute. Established to investigate “the most serious crimes of international concern” (Art. 1), the court seems blind to the most tragic humanitarian disasters it was mandated to investigate, making its inquiry into Israel “in full independence and impartiality” seem vindictive, biased and hypocritical.

Blind to the over 200,000 Syrians who have been brutally murdered since the conflict began, never mind the hundreds of thousands of Syrian refugees, the court makes no mention of Israel’s neighbor to the north. The ICC seems blind to the brutally cruel and unpredictable North Korean dictator, Kim Jong-un, who starves and suppresses his people into submission, executing anyone who dares disobey.

The ICC ought to invest its limited resources into investigating serious violations of international criminal law and human right in member states where international law is ridiculed and violated, and where the “most serious crimes of international concern” threshold is surpassed, dwarfing anything Israel, a country that holds international law on a lofty pedestal, could ever be accused of. It seems the ICC has a comparative disinterest in investigating the criminal violations of anyone but Israel, as seen by the ICC’s lack of action towards crimes against humanity that are far more heinous than those that may be attributable to Israel.

The ICC inquiry is to look at alleged crimes since June 13, 2014, a significant date with bias written all over it, once put in context. The horrific day of June 12, as many will recall, was the day that three teenage boys, Gilad, Eyal and Naftali were kidnapped, murdered and dumped in a field by Hamas operatives in the "West Bank". The kidnappings and triple murder shook the Israeli psyche, and arguably instigated the Summer 2014 conflict in Gaza that followed. But the ICC conveniently and deliberately excludes that episode, choosing to investigate only from the following day, June 13th, making it appear to be more about Israel’s alleged crimes than its terrorist inhabitants. 

The ICC bends over backwards to justify its reasoning in opening a preliminary investigation into Israel, stating that “The Office [of the Prosecutor] considers that, since Palestine was granted observer State status in the UN by the UNGA, it must be considered a "State" for the purposes of accession to the Rome Statute.” This reasoning has been criticized for the simple reason that "Palestine", according to many, is not yet considered a state and is therefore has no standing in the court. Clearly a contentious issue, the court accommodated a lenient interpretation of statehood, generously granting "Palestine" standing.   

Perhaps most puzzling about the ICC’s decision is the courts’ contravention of its very own admissibility requirements. Article 17 of the Rome Statute states that a case is inadmissible where “The case is being investigated or prosecuted by a State which has jurisdiction over it…” Israel has an active and independent, world renowned, respected legal system, and is taking full measures to investigate and prosecute it’s soldiers on all levels for crimes that may have been committed against both domestic and international law. The fact that Israel conducts its own “genuine” investigations should, according Art. 17, deny the ICC jurisdiction. 

To put things in context, it is necessary to explain that the preliminary investigation opened by the ICC is not a full fledged investigation, but rather a step to determined whether a full investigation is needed. It could take months or even years to complete this phase. But Israel must nip this in the bud and recognize the potential harm that could ensue if appropriate measures are not taken.

Despite labeling the whole ordeal as absurd, Israel ought to diligently and meticulously prepare legal defences to any accusation, and continue to conduct independent investigations, so that the ICC ultimately concludes that a full investigation is unnecessary. At the same time, it must recognize the ICC as a new battle ground where an an arsenal of offensive materials needs to be stockpiled and then unleashed upon the Palestinian Arabs at the right time. Now that the legal battle has begun, however, I have no doubt that the exceptional legal and moral safeguards the IDF has in place will withstand the scrutiny of the Prosecutor.

While visiting the court last year, I was impressed and humbled at its being the only institution that could dispense justice internationally. Conscious of how necessary the ICC is, as an impartial body which could prosecute the most serious war criminals, I appreciated its tireless efforts to bring justice to the darkest corners of the earth. Thus, it was disappointing to read the ICC press release about the preliminary examination into Israel and Palestine, as there are more serious war crimes in which the court should invest its resources.

Delving into the highly political Israeli-Palestinian Arab conflict has reduced the courts credibility and diverts attention away from other parts of the world, where crimes against humanity occur and the war criminals walk free. 




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