The International Criminal Court (ICC) is a body whose dissolution is more justified than its continued functioning. In its 18 years of existence it has spent in excess of $1.5 billion, much of it wasted.
Israel has always has to be careful with supra-national bodies. As most countries in the world are not free, dictatorships and other non-democracies often control them.
The highly problematic Chief Prosecutor of the ICC is Fatou Bensouda, from Gambia. Freedom House does not rate Gambia a democracy. It states that the rule of law is unconsolidated there. Bensouda was Minister of Justice and Attorney General of Gambia from 1998-2000 under President Yahya Jammeh who took power by a coup. He was considered a brutal dictator and has stolen major sums of money from the country. One wonders what a court would have to say about Bensouda’s role in those years.
Nor is the ICC independent. Ambassador (ret.) Alan Baker, a former legal advisor to the Israeli Ministry of Foreign Affairs and currently at the Jerusalem Center for Public Affairs, wrote: "Placing part of the ICC’s financing at the political mercy of the UN General Assembly undermines and prejudices any pretension of independence of the Court. Funding of the ICC, like any other action requiring approval in the UN General Assembly is, of necessity, a process driven by the political and economic interests of its members and subject to political bargaining that is unconnected to the needs of the Court. Despite the best intentions of its founders, the very independence and impartiality of the Court was flawed from the outset by constitutionally linking the Court with the United Nations.”
ICC’s choice of Israel as a target for investigation at the request of the Palestinian Arabs is a clear expression of this. If one looks at war crimes in the world, even in the Middle East, there are several hugely criminal countries that should have been dealt with long ago. The Syrian government is one of them.
Why did Bensouda, with her problematic legal past choose Israel as a target for investigation? The more so as the complaint against it was brought by "Palestine", which according to many democratic governments, is not even a state.
The answer is not difficult. A crucial role in this decision has been played by the ineptness of Israel’s government system.
During the initial investigation, Israel's legal experts were in touch with the ICC unofficially. That task was handled jointly by the Ministries of Foreign Affairs and Justice. Yet the government’s behavior on the political side was erratic, which is probably a euphemism. A strong political reaction could have been prepared over many months.
When the ICC announced at the beginning of 2020, that it intended to start investigating Israeli and Palestinian Authority war crimes, two top Israeli politicians came out with statements. Prime Minister Benjamin Netanyahu called the court “antisemitic.” So did then Defense Minister Naftali Bennett. This may even be true if one applies the International Holocaust Remembrance Association definition of antisemitism to the Court’s decision. Yet it was largely irrelevant. Antisemitism is not the battleground on which Israel’s past and future political campaigns against the ICC should have been conducted.
Now the court has taken a further step. Two of its three member pre-trial chamber judges, Sophie Alpini-Gansou from Benin and the Frenchman Marc Perrin de Brichambaut, ruled that the court had jurisdiction on the case. It recognized the PA's right to be a state party in the Rome statute, the founding document of the ICC. They claimed that they should be treated as any other state party by the court. This should not be interpreted as recognition of Palestinian statehood, nor should it be reviewed as determinative with regard to the borders of such a state.
The decisions of the court will be made by various judicial levels. This means that one will be unable to blame the entire process on specific persons. Bensouda, the most likely candidate for blame is leaving her position in June and a new chief prosecutor will be appointed.
The court is slow in making decisions and specific ones against Israeli individuals may take years. This leaves enough time for Israel and its allies to batter the court verbally so much that it understands it is better to drop any actions. The supranational body does not need drawn out public discussions about its multiple severe shortcomings.
The Israeli government's policy to come out with statements only after the ICC announced a further step is structurally and strategically mistaken. One should not see Bensouda's actions as exclusively legal. They are also to a large extent political. The ICC has in the past primarily dealt with Africa. It has an urgent need to find targets beyond that continent. Israel seems an easy one because it is often attacked by many states and organizations including from the West. It also defends itself against these verbal attacks extremely poorly.
One may consider it speculative but if the ICC had seen that Israel fights the propaganda against it forcefully and effectively, it would have sought to interfere elsewhere in more logical places.
Almost every week now, cases occur where the absence of an Israeli anti-propaganda agency shows the damage the country suffers due to the government's blocking of the establishment of such a body. Upon the recent ICC's decision Netanyahu called the court ruling out as 'pure antisemitism' and stated "we will fight this perversion of justice with all our might." This is not even a remote substitute for the actions that an Israeli anti-propaganda agency could have taken over the years.
Even forceful Israeli actions against other anti-Israeli bodies would have made Mrs. Bensouda and her associates think a number of times before they entered the Israeli-Palestinian conflict.
Dr. Manfred Gerstenfeld has been a long-term adviser on strategy issues to the boards of several major multinational corporations in Europe and North America.He is board member and former chairman of the Jerusalem Center for Public Affairs and recipient of the Lifetime Achievement Award (2012) of the Journal for the Study of Anti-Semitism, and is considered the foremost expert of antisemitism.