ICC ruling on Israel will have repercussions

Last Friday, a three-judge panel of the International Criminal Court (ICC) ruled that it has jurisdiction over the West Bank territories that Israel has held since 1967’s Six-Day War.

Israel has offered compelling and persuasive arguments that the ICC does not have jurisdiction or the legal authority to hear and determine disputes involving Israel or its citizens. The ICC was created by the Rome Statute of 2002, a treaty to which 123 sovereign nations have agreed. Significantly, neither Israel nor the United States have agreed to the Rome Statute. Both Israel and the U.S. flatly deny that the ICC has valid legal authority to adjudicate disputes to which they, or their citizens, are a party.

The Palestinian Authority (PA) joined the ICC in 2015 and asked for the inquiry that led to last week’s misguided decision. The PA is not a sovereign nation, and the express terms of the Rome Statute treaty require that parties to it must be sovereign nations. When the PA joined the ICC, Israel and the United States criticized the court’s recognition of the PA because it is not a sovereign state.

The ICC panel that issued the opinion consisted of three judges. Two judges agreed to the decision. Judge Péter Kovács of Hungary dissented. Judge Kovács disagreed that the ICC has jurisdiction over Israel. It took the court six years to determine that it has the legal power to hear disputes between Israel, Israeli citizens and aggrieved Palestinians. The original request to bring investigations and bring prosecutions was made by the court’s chief prosecutor, Fatou Bensouda.

So, two judges of a court, created by a treaty that Israel has not joined, have granted leave to the ICC to investigate, indict and convict Israelis based upon complaints made by terrorist organizations such as Hamas and Islamic Jihad.

This unwise decision may lead to unparalleled consequences for Israel and its citizens. Israelis traveling in Europe and across the world may be subjected to arrest on warrants issued by the ICC in pursuit of investigations resulting from criminal complaints filed by Israel’s avowed enemies.

Israel’s Prime Minister Benjamin Netanyahu quickly condemned the court’s decision.

“Today the court proved once again that it is a political body and not a judicial institution,” the prime minister said in a statement. “The court ignores real war crimes and instead persecutes the State of Israel, a state with a firm democratic regime, which sanctifies the rules of law, and is not a member of the court.”

Netanyahu vowed that Israel “will fight this perversion of justice with all our might.”

President Biden’s State Department issued a statement that expressed “serious concerns” about the court’s decision.

“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 U.N. Security Council,” said Ned Price, the State Department’s spokesman.

The two judges of the ICC panel that issued the decision ruled that the PA qualified as a state in territory where events occurred that would be a basis of their complaints, namely in the West Bank, Gaza and East Jerusalem.

Prime Minister Netanyahu’s expressed concerns are entirely valid. The ICC’s decision now opens Israel to a “no-holds-barred” approach to complaints brought against it by extremists. The ICC has opened the floodgates to investigations that result in indictments and arrest warrants served and enforced by Interpol, the international criminal police organization, which has 194 nations as members, including Israel.

The prime minister also pointed out that the ICC’s decision is “refined antisemitism. This court was created to prevent horrors like the Nazi Holocaust against the Jewish nation, and now it is attacking the only country of the Jewish nation.”

He added that the court “casts these delusional accusations against the only real democracy in the Middle East” while refusing to “investigate the real war crimes committed by brutal dictatorships like Iran and Syria on a daily basis.”

Chief Prosecutor Bensouda’s term of office is set to expire in June of this year. Let us hope that she weighs any decision involving Israel or its citizens in a careful crucible of objective fairness and considers Israel’s own well-defined judicial system as the proper forum for determination of claims of criminal conduct within its borders.

Like the United States, Israel is a sovereign nation. Neither Israel nor its citizens, whether they live on the West Bank or are veterans of Israel’s Defense Forces (IDF), should be subjected to legal peril by a court created by a treaty to which Israel is not a party.

Prosecutions against Israel and its citizens will be inherently political. The ICC’s decision is a real blow to its legitimacy and will discredit valid prosecutions against terrorists and other perpetrators of evil in cases where it has legitimate jurisdiction over proper defendants.

A version of this editorial appeared in the Feb. 11 edition of the Jewish Herald-Voice in Houston and is reprinted with permission.

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