The ICC's Decision Is a Red Flag for Israel
Sunday, February 7, 2021 at 11:58PM Haaretz Editorial 6 February 2021 Haaretz
https://www.haaretz.com/opinion/editorial/.premium-the-icc-s-decision-is-a-red-flag-for-israel-1.9517743
International Criminal Court's chief prosecutor Fatou Bensouda holds a press conference during her visit to look into allegations of extreme violence in Kinshasa, Democratic Republic of the CongoCredit: John Wessels/AFP
The International Criminal Court’s ruling that it has jurisdiction over the occupied territories and East Jerusalem has predictably sparked angry reactions in Israel. Prime Minister Benjamin Netanyahu based his criticism of the decision on two familiar foundations. First, “The court ignores the real war crimes and instead pursues Israel, a country with a strong democracy that sanctifies the rule of law.” Second, “In this decision, the court undermined the right of democratic countries to defend themselves against terror.”
But Netanyahu’s arguments are ludicrous. The court didn’t rule that Israel was guilty of war crimes; it merely responded to a request from prosecutor Fatou Bensouda, who asked the pretrial chamber of judges to rule on the fundamental question of the court’s territorial jurisdiction. Nor is there any connection between the fact that Israel is a democracy and the commission of prima facie war crimes. Democracies have committed and still commit war crimes, and the fact that they are democracies doesn’t grant them immunity from investigation or prosecution.
Israel’s complaint that the ICC ignores real war crimes and is “persecuting” it for political reasons tells us more about Israel than it does about the court. Israel has failed to understand that its very status as a democratic, law-abiding country obligates it to uphold higher standards than those demanded of countries like Iran, Syria or Sudan. Nor has the court denied Israel’s right, or that of any other country, to fight terrorism to protect itself. But it insists that the war on terror is conditional on compliance with international law and the laws of war, and that an international body has the power to determine what constitutes legitimate action and what constitutes a war crime.
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The most important part of the decision is its recognition of Palestine as a state with the right to seek redress from the court. The judges didn’t rule on its borders or seek to solve the Israeli-Palestinian conflict, but they considered Palestine’s recognition by the UN General Assembly and the fact that the Palestinian Authority joined the ICC in 2015 and deemed these sufficient under the Rome Statute, which determines who is authorized to seek redress from the court. They thereby showed that Israel’s battle against recognition of the State of Palestine is pointless.
Israel should view the judges’ decision, which paves the way for an investigation into its conduct in the territories, as a red flag. Israel now has the status of a suspect state, and it must present its arguments and its interpretation of the incidents the court will investigate. Throwing mud at the ICC and refusing to cooperate with the investigation won’t acquit it if its guilt is in fact ultimately proved.
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U.S. Objects to ICC Probe, 'Opposes Actions That Seek to Target Israel Unfairly'
U.S. State Department says that the Palestinians are not a sovereign state and are not qualified for ICC membership after court decides to probe alleged Israeli and Hamas war crimes
WASHINGTON - The U.S. Department of State said Friday night that it objects to the International Criminal Court in The Hague's decision earlier that day to open legal proceedings against Israel and Hamas on suspicion of committing war crimes in the West Bank, East Jerusalem and the Gaza Strip
State Department Spokesperson Ned Price tweeted that "The United States objects to today’s [ICC] decision regarding the Palestinian situation. Israel is not a State Party to the Rome Statute," adding that "We will continue to uphold President Biden’s strong commitment to Israel and its security, including opposing actions that seek to target Israel unfairly."
A State Department press release said that the court “issued a decision claiming jurisdiction in the West Bank, East Jerusalem, and Gaza, while expressly recognizing the serious legal and factual questions that surround its ability to do so.”
The statement reiterated the department’s position, as expressed in 2015 when “the Palestinians purported to join the Rome Statute,” that it does not believe the Palestinian territories “qualify as a sovereign state, and therefore are not qualified to obtain membership as a state, or participate as a state in international organizations, entities, or conferences, including the ICC.”
It added, “We have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. The United States has 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.”
The court approved on Friday evening Prosecutor Fatou Bensouda’s request to open the legal proceedings after accepting the findings of Bensouda’s preliminary investigation from December of 2019, which found that there is a basis for investigating the matter further. It ruled that the court does have jurisdiction in the Palestinian territories, rejecting Israel's argument that it lacks such authority. The ruling passed with a 2-1 vote, with Presiding Judge Peter Kovacs of Hungary issuing a dissenting opinion.
The court noted that it is “not constitutionally competent to determine matters of statehood that would bind the international community,” explaining that its ruling on jurisdiction is “neither adjudicating a border dispute… nor prejudging the question of any future borders.”
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The decision was harshly criticized by Prime Minister Benjamin Netanyahu: "Today, the court proved once again that it is a political body and not a judicial institution," he said.
"The court ignores real war crimes, and instead persecutes Israel, a country with a stable democratic regime that holds up the rule of law and is not a member of the court. With this decision, the court harmed democratic nations' right to defend themselves from terrorism and played into the hands of elements that undermine efforts to expand the circle of peace." Netanyahu added, "We will continue to protect our citizens and our soldiers in every way from legal persecution."
The prosecutor announced in late 2019, after issuing a number of warnings, that there was a basis for launching a probe against Israel and Hamas on suspicion of war crimes in the territories since 2014, in the wake of a petition by the Palestinian Authority.
Bensouda initially asked of the court to rule on the question of its territorial jurisdiction in the West Bank and Gaza. She did so because Israel argues that only countries with sovereignty can give the court criminal jurisdiction and that the matter is a political dispute.
Bensouda wrote in 2019 that "Based on the available information, there is a reason to believe that war crimes were committed in the context of the 2014 hostilities in Gaza," referring to Operation Protective Edge. She also wrote that available information shows that "The Israel Defense Forces intentionally launched disproportionate attacks in relation to at least three incidents which the ICC has focused [on],” which intentionally lead to killings and a significant number of injuries.
"There is a reasonable basis to believe that… members of the Israeli authorities have committed war crimes by transferring Israeli civilians into the West Bank," Bensouda said, adding that "Despite the clear and enduring calls that Israel cease activities in the Palestinian Territories [that have been] deemed contrary to international law, there is no indication that they will end. To the contrary, there are indications that they may not only continue, but that Israel may seek to annex these territories."
She then cited Netanyahu's campaign promise in August and September 2019 to annex the Jordan Valley should he win reelection. Annexation was effectively taken off the table as part of the Abraham Accords normalization deal between Israel and the United Arab Emirates.
In relation to Gaza, she wrote: “The Prosecution further considers that the scope of the situation could encompass an investigation into crimes allegedly committed in relation to the use by members of the IDF of non-lethal and lethal means against persons participating in demonstrations beginning in March 2018 near the border fence between the Gaza Strip and Israel, which reportedly resulted in the killing of over 200 individuals, including over 40 children, and the wounding of thousands of others.”
The prosecutor added that there is "A reasonable basis to believe that members of Hamas and Palestinian armed groups committed the war crimes” during Operation Protective Edge, including “Intentionally directing attacks against civilians and civilian objects, using protected persons as shields” and torture.
In July, U.S. President Donald Trump, in coordination with Israel, ordered the levying of sanctions on individuals and groups involved in the ICC investigation of suspected U.S. war crimes in Afghanistan. Senior administration officials said a number of times that they would also see the decision to investigate Israel as a “political” decision that may provoke a further American response. The U.S. decision triggered a wave of opposition by dozens of countries, which this week affirmed their support for the international court.
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Washington should let the ICC do its Job
972 Magazine <info@972mag.com>. From 972
7 February 2021
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