May 30, 2024
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The Battle at the ICC to Prosecute Israel for Defending Itself

After acts of terror and war crimes perpetrated on Israel, and after the Palestinian Authority and Hamas brought charges against Israel at the International Criminal Court in the Hague last week, Israel began lobbying member-states of the ICC (Canada, Australia, Germany and Japan) to cut funding to the tribunal and Israeli Prime Minister Benjamin Netanyahu issued a statement saying “Israel rejects the absurd decision of the ICC prosecutor.” He said the Palestinians don’t have a state and can only get one through direct negotiations with Israel, not by ignoring international law and agreements, according to the Oslo Accords.

Pundits have said that this benefits Israel rightwing parties by allowing them to paint Europe as recidivist antisemites and harden their positions for a one-state solution.

“The rules of the ICC are clear,” said Netanyahu in his statement about Bensouda’s decision, “No State, No standing, No case. It’s absurd for the ICC to go after Israel, which upholds the highest standards of international law. Our actions are subject to the constant and careful review of Israel’s world-renowned and utterly independent legal system.”

He said “The decision is even more preposterous given that Israel is legitimately defending itself against Palestinian terrorists who routinely commit multiple war crimes….”

Netanyahu went on, “It’s the democracy of Israel, a world leader in fighting terrorism, which is to be hauled to the dock in The Hague, while the terrorist war criminals of Hamas (claiming they have thousands of documents proving the IDF’s involvement in war crimes) are the ones who are going to be pressing the charges.”

Israel’s case could possibly be undermined by both the United Nations and the United States Department of State, which have issued reports detailing “price tag” attacks against Palestinians by “extremist” Israelis but have not included any attacks by Palestinian terrorists against Israelis in their reports of incidents in the West Bank.

Though ICC was formed to deal with war crimes, such as the Holocaust, its past decisions have ruled against Israel and allowed the Palestinians to use the biased ICC to whittle away at the Oslo Accords which prohibits them from seeking “a final status determination outside of negotiations and giving Israel exclusive jurisdiction over Israeli nationals in the territories.”

The UN General Assembly left-handedly granted “Palestine status as a ‘non-member observer State,” to the PA on November 29, 2012, and the PA could accept the jurisdiction of the ICC from that date onward. The United States and Israel are both signatories which have not ratified membership with the ICC (along with Bahrain, Kuwait, Thailand, Ukraine and Yemen).

The White House said that in a phone call to Netanyahu, President Barack Obama said that the United States opposed the PA’s bid to join the ICC. He “reiterated the United States’ position that the Palestinian Authority does not yet constitute a state, and is therefore not eligible” to join the court, the administration said in a statement.

In a bi-partisan statement from US Senators Robert Menendez (D-New Jersey), Lindsey Graham (R-South Carolina), Chuck Schumer (D-New York), and Mark Kirk (R-Illinois), it was announced that “Congress will reassess its support for assistance to the PA and seek additional ways to make clear to President Abbas that we strongly oppose his efforts to seek membership in the ICC. If the ICC makes the egregious mistake of accepting the Palestinian Authority as a member (which subsequently it has), given that it is not a state, Congress will seek ways to protect Israeli citizens from politically abusive ICC actions.”

Congresswoman Nita Lowey (D-NY), Ranking Democrat on the House Appropriations Committee and the State and Foreign Operations Subcommittee, said, “In the absence of an agreement negotiated between Israel and the Palestinians, economic assistance will be suspended if the Palestinians seek and obtain membership in the United Nations or in any of its specialized agencies, or should the Palestinians initiate or actively support an ICC investigation aimed at Israeli nationals for alleged crimes.”

She added, “Years of efforts on behalf of Palestinians for an independent state that peacefully exists side-by-side with Israel are at risk. President Abbas’ retreat from direct negotiations and pursuit of unilateral action threatens to further destabilize an already highly volatile situation.”

According to the ICC’s own rules the opening of a preliminary examination is a matter of policy and practice. According to a press release issued by the ICC, “A preliminary examination is not an investigation but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute. Specifically, under article 53(1) of the Rome Statute.”

There are no timelines provided in the Rome Statute for a decision on a preliminary examination. Depending on the facts and circumstances of each situation, the Office will decide whether to continue to collect information to establish a sufficient factual and legal basis to render a determination; initiate an investigation, subject to judicial review as appropriate; or decline to initiate an investigation.

By Anne Phyllis Pinzow

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