International Criminal Court prosecutor Fatou Bensouda at the court in The Hague, Netherlands, July 8, 2019. (Photo/JTA-Eva Plevier-AFP via Getty Images)
International Criminal Court prosecutor Fatou Bensouda at the court in The Hague, Netherlands, July 8, 2019. (Photo/JTA-Eva Plevier-AFP via Getty Images)

International Criminal Court is bending to Palestinians’ will

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Back in the summer of 2014, I returned with my wife and two little kids to Israel from a diplomatic post in New York City. We were excited to be back, but we had returned just one month after the kidnapping and murder of three Israeli teenagers, and during a time of continual Hamas rocket fire on Israeli cities south of Tel Aviv.

These long-range rocket attacks had one purpose — to kill peaceful civilians, to terrorize and to maximize damage.

Every night for weeks, we had to wake up the kids in the middle of the night to run to the shelter.

Last week, we were shocked when the chief prosecutor of the International Criminal Court announced that the ICC was initiating an investigation against Israel for alleged war crimes since June 13, 2014 committed against Palestinians.

It’s a morally bankrupt and legally flawed decision.

The mere fact that Hamas, the murderous terrorist organization that kidnapped and murdered the three boys that summer, has welcomed this decision is the best evidence of its moral worth.

There is no other way but to see this decision than as a political one made by a prosecutor at the end of her term in an attempt to dictate her successor’s priorities.

Simply put, the ICC does not possess universal jurisdiction.

In fact, the ICC wholly lacks jurisdiction over the so-called “situation in Palestine.” The ICC’s Rome Statute clearly stipulates that the ICC has jurisdiction only in cases brought before it by sovereign states; a sovereign Palestinian state does not exist, and never has.

Despite these facts, the ICC’s Pre-Trial Chamber ruled that The Hague has the jurisdiction to investigate Israel.

Unfortunately, two judges came to this decision on the basis of political considerations rather than judicial ones. In fact, it was for these very reasons that the presiding judge himself, Judge Péter Kovács, opposed the majority opinion of the Pre-Trial Chamber. In his highly critical dissenting opinion, he stated that the majority’s approach has “no legal basis in the Rome Statute, and even less so in international law,, as well as that “acrobatics with provisions of the statute cannot mask legal reality.”

It is worth noting that the dissenting opinion reflects the official positions of seven leading state parties of the ICC — Germany, Austria, Australia, Brazil, the Czech Republic, Hungary and Uganda — as well as world renowned international law experts.

Jurisdiction goes to the heart of the integrity of the judicial process. It is not a

mere formality, nor technicality; it plays a critical role in preventing abuse of the judicial process. Jurisdiction is the factor that distinguishes a non-partisan judicial body from a political one.

By turning to the ICC, the Palestinians are attempting to turn the court into a political tool and push the court to determine political issues that should be resolved through direct negotiations, not by criminal proceedings.

They’ve perverted the concept of jurisdiction for the sake of advancing their own political interests, corrupting the court’s integrity and its ability to stick to its core mandate in the process.

By adopting this damaging decision — and by continuing to chase democracies (with independent and effective legal systems) that are fighting terrorism in such places as Iraq, Afghanistan and Gaza — the ICC’s Pre-Trial Chamber has overstepped its core mandate.

The United States, Canada, Australia, Germany and others have expressed reservations over this decision.

Let’s remember that the ICC was established following the horrors of the Holocaust. It was to deal with the worst cases of mass atrocities that shook the conscience of humanity, and with cases that could not be addressed within any other framework, and it has authority only in cases in which states choose to delegate their own criminal jurisdiction to the court.

Israel is a democratic state with an independent and effective legal system,  and is not a member of the ICC.

The decision to open an investigation against Israel is a breach of the court’s mandate. It is a waste of the international community’s resources by a biased institution that has lost all legitimacy and which operates as a political body rather than a judicial one.

Israel has valid legal claims over the same territory that the Palestinians have sought to submit to the ICC’s jurisdiction. The agreement between Israel and the Palestinians to resolve their dispute over the future status of this territory through negotiations has long been between the two sides and is widely accepted by the international community.

The recent normalization agreements between Israel and the United Arab Emirates, Bahrain, Sudan and Morocco offer further proof that the only way to achieve genuine peace is through direct negotiations.

The involvement of the ICC in this bilateral conflict will have only a detrimental effect on the capacity for genuine dialogue and negotiations between Israel and the Palestinians.

Attempting to “criminalize” aspects of the longstanding dispute between Israel and the Palestinians produces further polarization, exacerbates the conflict and distances the ultimate goal of peace.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of J.

Shlomi Kofman
Shlomi Kofman

Shlomi Kofman is the consul general of Israel to San Francisco and the Pacific Northwest.