The door was opened to war crimes investigations against Israel at the International Criminal Court (ICC) on Friday, as a Pre-Trial Chamber for the ICC ruled that territories claimed by the Palestinians were in scope for the Court’s war crimes trials. This decision came despite the Palestinians lacking recognized statehood or even control over the territories, which Israel also claims.
Israeli leaders were outraged at the decision, with Prime Minister Benjamin Netanyahu calling it “antisemitic”, Defense Minister Benny Gantz saying it was illegal and violated the very principles that set up the court, and the United States expressing “serious concerns.” Not surprisingly, one entity that endorsed the decision was the Hamas terrorist group based in Gaza.
While the ICC Pre-Trial Chamber was only focusing on jurisdiction, ICC Prosecutor Fatou Bensouda has previously announced in a statement on the ICC’s website that the preliminary investigation into the “Situation in Palestine” had left her “satisfied” that war crimes had been or are being committed in Judea and Samaria—territory the Palestinians claim as the “West Bank”—as well as the Gaza Strip and Jerusalem.
However, she referred the case to the Chamber to determine if the ICC could legally adjudicate the claims. A key objection to the latest ICC ruling by Israel and the US is that unless the United Nations Security Council brings charges against a state, only states that are party to the ICC can bring charges on their own territory. Neither scenario is the case for Israel. The Rome Statute that governs the court allows charges to brought by the “State on the territory of which the conduct in question occurred.”
In a statement from the Israeli Security Cabinet published by the Prime Minister’s office on Sunday, the Cabinet called war crimes allegations against the IDF “scandalous” and ordered steps to “protect the interests of the state and to defend its citizens and soldiers.”
Said the statement, “The court has no authority to make such a decision. Israel is not a member of the international court and the Palestinian Authority does not have the status of a state… The claim that Jews living in their homeland and their capital of Jerusalem constitutes a war crime is scandalous. Also, the claim that the IDF—there is no more ethical army—is carrying out war crimes even as it protects us from terrorists that launch rockets at our cities—is no less scandalous.”
The ICC Pre-Trial Chamber’s ruling, which was published to the ICC website, attempted to walk a legal tightrope in arguing “Palestine” could be investigated while also acknowledging they didn’t have the authority to recognize “Palestine” as a state or rule on the territorial dispute with Israel.
Instead, the Chamber claimed that because the United Nations had previously allowed “Palestine” to become a member of the Court, that decision effectively enabled the Palestinian entity to bring war crimes charges on the territory in which the UN General Assembly has said Palestinians have a right to claim independence.
Gantz, in a letter to Israel’s defense establishment on Saturday, wrote, “The ruling by the ICC’s judges is a poor one and lacks any basis in international law. The ICC lacks the authority to hold these proceedings, which are outrageous and designed simply to serve Israel’s detractors, who are looking for ways to do it damage by exploiting international institutions.”
The US, which like Israel is not a member state of the Court, reiterated on Friday their concern over the ICC’s jurisdiction, even as State Department deputy spokesman Ned Price said they were “reviewing” the decision that “just came out.”
Said Price, in comments published by the State Department, “We have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. We have always taken the position that the court’s jurisdiction should be reserved for countries that consent to it or that are referred by the UN Security Council.”
Gantz, meanwhile, didn’t stop his argument on the matter of jurisdiction. In his letter, he also highlighted the original purpose of the ICC and the capabilities of Israel’s own fully functioning judicial system.
“The ICC was never meant to undermine the efforts of democratic states fighting terrorism and protecting their people,” wrote Gantz. “The State of Israel is forced to contend with complex security threats and complicated challenges, which aren’t going anywhere. The IDF and [the] entire Israeli defense establishment will continue to protect the country and its citizens, with determination and professionalism, while upholding both our moral standards as a country, and as a military, as well as international law.
He continued, “The State of Israel has a high-caliber, professional and independent justice system, which includes professional and effective mechanisms for inquiry, investigation and judicial proceedings, and they do their work well.”
Hamas, in a statement on their website, said the terror group “welcomes” the ICC’s jurisdiction decision and called it an “important step.” Hamas also called for the international community to “help the Palestinian people in their fight” to achieve their “rights”, including independence.
Hamas, as part of that “fight”, has launched thousands of rockets at Israeli civilians, waged a suicide bombing campaign against Israel and fought multiple wars with the Jewish State. While Israel has repeatedly engaged in peace talks with the Palestinians, no Palestinian leader has accepted an offer from Israel of land for peace, and the Palestinian leadership has refused to even negotiate with Israel for years.
Netanyahu, in comments released by his office on Saturday, said, “When the ICC investigates Israel for fake war crimes—this is pure antisemitism. The court established to prevent atrocities like the Nazi Holocaust against the Jewish people is now targeting the one state of the Jewish people.”
Similarly, Sunday’s Israeli Security Cabinet Statement highlighted the hypocrisy of the Court: “Even as it allows the investigation of Israel, the only democracy in the Middle East that is committed to the rule of law, the court shuts its eyes to the awful war crimes being perpetrated time and again by dark dictatorships such as Iran and Syria.”
Yet despite the inconsistencies and controversy of the ICC’s decision, the legal fight for Israel appears to be just getting started. Netanyahu, in his Saturday comments, made clear Israel’s strong and defiant response.
“As Prime Minister of Israel, I can assure you this: We will fight this perversion of justice with all our might!”
(By Joshua Spurlock, www.themideastupdate.com, February 7, 2021)