In 2016, the International Criminal Court (ICC) faced a crisis. The African Union voted by a huge margin for a mass withdrawal from the ICC amid complaints that since its formation in 2002, the Court had only pursued cases concerning alleged war crimes in Africa. Indeed, questions about the necessity of a permanent Court, as opposed to ad hoc international tribunals such as those established to prosecute war crimes in Rwanda and Yugoslavia, had become increasingly difficult to fend off given that in its first ten years, the ICC had spent nearly $1 billion USD, employed over 700 staff, and delivered a single trial, that of Congolese militia leader, Thomas Lubanga.
The ICC had also failed to recruit global powers to the Court, limiting its prestige. Russia, China, and India never signed the Rome Statute, the treaty which established the ICC. The United States under Bill Clinton did sign, but with a major caveat. President Clinton observed that while the legacy of the Nuremburg Trials necessitated collective judicial action to bring war criminals to justice, the treaty, had “significant flaws.”
Clinton was concerned that US officials could face “unfounded charges” and that the Court was susceptible to “politicised prosecutions,” so the treaty was never presented to the Congress for ratification. Subsequent US presidents maintained the position of not joining the Court or accepting its jurisdiction.
The mandate of the ICC was always intended to be narrow. Generally, its jurisdiction is triggered when a matter is referred to it by the UN Security Council or when alleged genocide, crimes against humanity, war crimes, or crimes of aggression occur on the territory of an ICC member state or when a citizen of a state that is party to the ICC is accused of such a crime. As a tribunal of last resort, it is to be used only when the country, having jurisdiction over an alleged international crime, cannot or will not deal with the matter.
Affirming the limited scope of the ICC, its first Chief Prosecutor, Luis Moreno-Ocampo asserted that “whenever there is genuine State action, the Court cannot and will not intervene … and that States bear the primary responsibility for investigating and prosecuting war crimes, consistent with international law.” Ocampo’s remarks were intended to assuage growing fears among western nations that the Court would eventually maliciously pursue leaders who were democratically elected, accountable, and scrutinised by independent justice systems.
The Court’s decision to pursue Israel is precisely the sort of betrayal of the ICC’s mandate that President Clinton and his successors foresaw, and it will have implications far beyond exposing Israeli citizens to arbitrary detention abroad. The policymakers and military personnel of all Western countries engaged in counterinsurgencies and fighting prescribed terrorist organisations will now be vulnerable to similar measures.
The recent pre-Trial Chamber decision focused on preliminary questions of jurisdiction that have split legal opinion. Putting the fundamental issue of jurisdiction aside, there is no substantive aspect of the Israeli-Palestinian conflict that merits examination by a court of last resort concerned with mass crimes.
Despite the intractability of the Israeli-Palestinian conflict and its capacity to produce bouts of violence and periodic wars, there are no credible allegations of systematic mass atrocities. Indeed, the combined Israeli and Palestinian death totals, including civilian casualties, from the three Hamas-Israel wars fought in Gaza and southern Israel between 2008 and 2014, stands at roughly 3,500. By contrast, around 100,000 have been killed in Yemen since 2014, and some 400,000 have died since the beginning of the Syrian Civil War. Conflicts in Africa have featured the raising of child armies, the annihilation of whole ethnic groups, mass rape as a weapon of war, and death tolls on a truly incomprehensible level.
The current ICC Prosecutor’s pursuit of Israel would therefore significantly lower the Court’s gravity threshold (Art. 17) and violate its mandate to deal with “the most serious crimes of international concern” (Rome Statute preamble and Art. 1). The focus on Israel also represents a discarding of the foundational “court of last resort” doctrine.
Israel’s Military Advocate General (MAG) has wide powers of investigation and prosecution, of Israeli military personnel. After the 2014 Gaza conflict, the Israel Defense Force’s investigations into some 360 alleged criminal incidents were reviewed by the MAG, and 24 of them were referred for criminal prosecution, leading to several convictions. Israel’s MAG is subject to the supervisory jurisdiction of the Attorney General, and thus, Israel’s Supreme Court. Critics of Israeli rules of engagement in Gaza, security decisions in the West Bank, or the route of Israel’s security barrier have virtually unfettered access to Israel’s legal system. Successful cases are regularly brought before Israel’s Supreme Court not only by Israeli citizens but also by Palestinians living in the West Bank, NGO’s, and human rights organisations. This record is incompatible with any suggestion that Israel’s accusers have no recourse other than the ICC.
Israel is far from alone in expressing concerns about the ICC. A bipartisan letter signed in May last year by 67 US Senators, including now-Vice President Kamala Harris warned that the Court’s intended prosecution of Israel “constitutes a dangerous politicisation of the Court and distorts the Court’s purposes … as a court of last resort.” The letter further noted that the Court “does not enjoy legitimate jurisdiction in this case” and that the decision to prosecute Israel violates the Court’s own rules against “prosecuting cases against a country that has a robust judicial system willing and able to prosecute war crimes of its personnel.” The Court’s investigation of Israelis will bring further punishment by process, associating Israel with accusations of war crimes regardless of their veracity.
Following the “Jenin Massacre” libel in 2002, when Palestinian officials accused Israel of killing “more than five hundred people” in mass graves, committing “genocide” and “body snatching,” persistent media coverage, complementary NGO reports, and parliamentary speeches seared into the public consciousness a perception of Israel as criminal, illegitimate and uniquely deserving of punishment. Rather than serving the interests of justice, this only advanced the decidedly political motive of hardening public and policy-making opinion against Israel and building sympathy for the Palestinians.
Ultimately, the UN and the Palestinians themselves conceded that the true death toll in Jenin had been fifty-two Palestinians, virtually all combatants, along with twenty-three Israeli soldiers who had engaged in street-to-street combat to minimise the civilian casualties that would have eventuated from the use of artillery or airpower. Israelis believe that once the shroud of hyperbole is lifted, in any fair and open court, they would be absolved. Whether the ICC is such a fair and open court is highly questionable. What is clear is that ICC’s investigations will result in reputational damage to Israel and impact the freedom of Israeli citizens to engage with the world. In a greater sense, the ICC has now placed itself in conflict with all western armies and political leaders and has challenged the very notion of national sovereignty. The credibility of the ICC will suffer for it, as will the genuine victims of mass atrocities the Court is meant to protect and serve.
Alex Ryvchin is the Co-Chief Executive Officer of the Executive Council of Australian Jewry and is the author of “Zionism – The Concise History” (Connor Court, 2019) and “The Anti-Israel Agenda – Inside the Political War on the Jewish State” (Gefen Publishing, 2017).
First published at Australian Institute of International Affairs