Update from AIJAC

02/21 #02

This Update focuses on the meaning, background and implications of the controversial 2 to 1 decision of the pre-trial chamber of the International Criminal Court (ICC) released last Friday, Feb. 5. that, for purposes of jurisdiction, a “State of Palestine” exists that gives the court jurisdiction over the West Bank, east Jerusalem and Gaza. A good general backgrounder on that decision is available from BICOM.

We lead with top Israeli international law scholar and former diplomat Amb. Alan Baker. He argues that the decision last week represents a thorough politicisation of the ICC – which is especially ironic since Israel was instrumental in sparking the impetus for creating the ICC. He concludes that the decision not only “harms the integrity and credibility of the ICC”, but also “has the potential to undermine and derail the Middle East peace negotiating process.” For his complete analysis, CLICK HERE.

Next up is renowned American legal academic, lawyer and author Alan Dershowitz, who focuses especially on the decision of the court to unilaterally decide to recognise a “State of Palestine” based on no established legal authority whatsoever. He argues that this recognition both amounts to a reward for terrorism, and a setback for a single standard of human rights. He also says the Court is not a real court which interprets an existing body of law, but one which makes up the law it is supposed to enforce as it goes along. For Dershowitz’s strong comments in full,  CLICK HERE.

Finally, Dr. Gerald Steinberg of NGO Monitor places this ICC decision in the context of a long process of “lawfare” against Israel going back to 2001. He says this process began at the UN Conference on the Elimination of Racism in Durban, South Africa in that year, when 1500 non-governmental organisations (NGOs) declared Israel guilty of war crimes and genocide, and vowed “complete international isolation” of the Jewish state. He then lists a whole series of similar attempts to sanction and isolate Israel since then, including by major international NGOs such as Human Rights Watch and Amnesty International, and discusses their role in the decision of the ICC to go after Israel under current chief prosecutor Fatou Bensouda. For this important historical background on the ICC ruling, CLICK HERE.

Readers may also be interested in…

• Australian Foreign Minister Marise Payne’s statement on the ICC ruling.
• A summary of the dissent by the ICC pre-trial chamber Senior Judge Peter Kovacs of Hungary, strongly challenging the decision of his two colleagues to approve ICC jurisdiction.
• A more detailed analysis of the ICC decision and the dissent from Israeli international law scholar Pnina Sharvit Baruch. For those who missed it, a legal analysis also appeared in the Australian newspaper on Monday from Australian international law scholar Prof. Greg Rose.
• More good comments on the ICC decision from former senior British Army Col. (ret.) Richard Kemp (cited below by Dershowitz), Israeli lawyer Ran Soffer, British columnist Stephen Daisley, and academic and former diplomat Dore Gold. 
• Criticism of the decision from international Jewish groups – plus some suggestions about how the US Biden Administration, which also criticised the finding, can push back against it from American commentator David Milstein.
• Some good comment on Palestinian election plans and their implications – from Jacob Magid of the Times of Israel, strategic expert Col. (res.) Dr. Shaul Bartal, and American columnist Jonathan Tobin.
• An advisor to Iranian Supreme Leader Ayatollah Ali Khamenei recently strongly implied that Khamenei’s supposed “fatwa” (religious ruling) against building nuclear weapons could be changed if circumstances warrant. Comment on this development comes from proliferation expert Andrea Stricker and Bobby Ghosh of Bloomberg.
• Some examples from the many stories and comments now appearing at AIJAC’s daily “Fresh AIR” blog:
  • AIJAC’s statement on the ICC ruling and the Australian government’s stance in response.
  • Video of an AIJAC webinar with Israeli former politician and intellectual EInat WIlf, in which the ICC decision was canvassed, as well as the COVID situation in Israel, the upcoming Israeli election, and Jerusalem’s relations with the Biden Administration. A short excerpt of her remarks focussed on the ICC decision is here. Also available is a brief extract of her remarks focussing on what Australia can do to positively influence the Biden Administration’s policies toward Israel.
  • An article in the Daily Telegraph by AIJAC’s Tzvi Fleischer and Oved Lobel on Iran’s dangerous game of nuclear chicken with the incoming Biden Administration. 
  • Oved Lobel on Europe’s failure to confront Iranian terrorism on European soil, even after an Iranian diplomat was just convicted of attempting to blow up a large rally near Paris.
  • An AIJAC statement mourning the passing of US statesman George Shultz – whom AIJAC’s predecessor organisations honoured at a gala dinner in 1993, where he was given an award in recognition of his support and efforts, and especially for his work on behalf of Soviet Jewry.

This flawed decision turns the ICC itself into just one more Israel-basher

Alan Baker

Times of Israel, Feb. 6, 2021

The Pre-Trial Chamber’s recognition of ICC jurisdiction over the Territories is an irreparable stain on the Court

It is both tragic and ironic that the State of Israel, one of the founding fathers of the vision of creating an independent International Criminal Court after the unimaginable atrocities committed against the Jewish People during the Holocaust, has now become the target of that very International Criminal Court.

As one of the leading countries actively involved, from the start, in the negotiation and drafting of the founding document, the Statute of the ICC, it is all the more ironic that Israel now finds itself being accused by the Court based on Palestinian political manipulation.

What was intended to be an independent juridical body devoted to preventing impunity enjoyed by the most serious and atrocious war criminals, by bringing them to justice, is now being politically manipulated against the one state that since the early 1950s has consistently advocated the establishment of such a body, the State of Israel.

The irony is all the more evident given the legal acrobatics by the politically oriented and politically influenced prosecutor of the Court and the majority of judges of the Pre-Trial Chamber, in their obstinate and flawed insistence on attributing elements of statehood and sovereignty to a Palestinian entity that is distinctly, and by all international standards, not a state.

Nor does such entity have any sovereign territory, and thus, even according to the Statute of the ICC, cannot be the subject of the Court’s jurisdiction. The Palestinians have absolutely no standing in the court.

This ironic situation is not surprising given the prevailing international atmosphere of incitement and hostility towards Israel throughout the UN system.

However, what is shocking is the fact that the one international juridical institution that was hoped and intended by its founders, and stated in its founding document, to be “an independent, permanent International Criminal Court…with jurisdiction over the most serious crimes of concern to the international community as a whole,” has allowed itself to be politically manipulated and abused.

What was intended to be an apolitical juridical body, devoid of political pressure and influence, has now permitted itself to become one more Israel-bashing body at the disposal of those elements in the international community seeking to undermine Israel’s legitimacy.

In so doing, the Court has irreparably prejudiced any juridical integrity, credibility and bona fides that it might have had.

This decision by the Court’s Pre-Trial Chamber to accept the contention of the prosecutor, based purely on non-binding and un-authoritative political resolutions of the UN General Assembly, that the Court can exercise jurisdiction over disputed territory that is in the midst of an internationally recognized dispute-settlement process, defies all legal logic.

It is all the more illogical given the fact that the State of Israel is not party to the Rome Statute, the treaty that lays the architecture of the International Criminal Court and defines international crimes.

Since the ICC Statute is open to sovereign states only, and since no sovereign Palestinian state exists, and since there exists no Palestinian territory over which the Court could exercise its jurisdiction, the Pre-Trial Chamber, by any legal logic, should have rejected the contentions of the prosecutor.

Israeli International Law expert and former diplomat Amb. Alan Baker (Source: Twitter). 

In light of the fact that the territories subject of the Palestinian referrals to the Court, are under an agreed and internationally accepted dispute-settlement and negotiation process, the Pre-Trial Chamber of the ICC, by any legal logic, should have rejected the contentions of the prosecutor, rather than attempt to prejudge and undermine the outcome of the negotiating process by determining that there exists sovereign Palestinian territory.

Sadly, and regrettably, this decision not only irreparably harms the integrity and credibility of the ICC, but it also has the potential to undermine and derail the Middle East peace negotiating process, since the Court, at the behest of its prosecutor, is attempting to prejudge the outcome of that process, contrary to all historic and legal logic.

The hijacking, abuse and manipulation of the ICC is the antithesis of the vision of its founding fathers, the states and the international legal experts that devoted so much time, effort, and enthusiasm to establishing a genuinely objective juridical body.

Is Palestine a State?

by Alan M. Dershowitz

Gatestone Institute, February 9, 2021

• The highly politicized International Criminal Court just declared statehood for Palestinians. They did it without any negotiation with Israel, without any compromise, and without any recognized boundaries. They also did it without any legal authority, because the Rome Statute, which established the International Criminal Court, makes no provision for this criminal court to recognize new states.
• The International Criminal Court is not a real court in any meaningful sense of that word. Unlike real courts, which have statutes and common law to interpret, the International Criminal Court just makes it up. As the dissenting judge so aptly pointed out, the Palestine decision is not based on existing law. It is based on pure politics.
• The Palestinians — both in the West Bank and Gaza — who have refused to negotiate in good faith and have used terrorism as their primary claim to recognition, have been rewarded for their violence by this decision.
• The real victims of such selective prosecution are the citizens of these third world countries whose leaders are killing and maiming them.
• All in all, the International Criminal Court decision on Palestine is a setback for a single standard of human rights. It is a victory for terrorism and an unwillingness to negotiate peace. And it is a strong argument against the United States and Israel joining this biased “court,” and giving it any legitimacy.
  The International Criminal Court’s chief prosecutor Fatou Bensouda is presiding over a process where no body of law exists, but the court just makes it up. (Source: Wikimedia Commons).

The highly politicized International Criminal Court just declared statehood for Palestinians. They did it without any negotiation with Israel, without any compromise, and without any recognized boundaries. They also did it without any legal authority, because the Rome Statute, which established the International Criminal Court, makes no provision for this criminal court to recognize new states. Moreover, neither Israel nor the United States ratified that treaty, so the decisions of the International Criminal Court are not binding on them. Nor is this divided decision binding on signatories, since it exceeds the authority of the so-called court.

I say “so-called” court, because the International Criminal Court is not a real court in any meaningful sense of that word. Unlike real courts, which have statutes and common law to interpret, the International Criminal Court just makes it up. As the dissenting judge so aptly pointed out, the Palestine decision is not based on existing law. It is based on pure politics. And the politics of the majority decision is based in turn on applying a double standard to Israel — as the United Nations, the International Court of Justice and other international bodies have long done.

There are numerous other groups — the Kurds, the Chechens and the Tibetans among them — who claim some degree of independence. Yet neither the International Criminal Court nor other international organizations has ever given them the time of day. But the Palestinians — both in the West Bank and Gaza — who have refused to negotiate in good faith and have used terrorism as their primary claim to recognition, have been rewarded for their violence by this decision.

Israel, which has offered the Palestinians statehood in exchange for peace on several occasions, has been punished for its willingness to negotiate and its determination to protect its citizens from Palestinian terrorism.

There are so many serious war crimes and other violations of humanitarian laws occurring around the world that the International Criminal Court deliberately ignores. The chief prosecutor sees as one of her roles to focus attention away from third world countries, where many of these crimes occur, and toward Western democracies. What could be a better target for this perverse form of “prosecutorial affirmative action” than Israel. I say perverse because the real victims of such selective prosecution are the citizens of these third world countries whose leaders are killing and maiming them.

Israel, on the other hand, has the best record on human rights, the rule of law, and concern for enemy civilians than any nation faced with comparable threats.

Renowned American legal academic, legal practitioner and author Alan Dershowitz. 

According to British military expert Richard Kemp, “No country in the history of warfare has done more to avoid civilian casualties than Israel did in Operation Cast Lead.” Israel’s Supreme Court has imposed daunting restrictions on its military and has provided meaningful remedies for criminal acts committed by individual Israeli soldiers. The role of the International Criminal Court, according to the treaty, is to intrude on the sovereignty of nations only if those nations are not capable of administering justice. The principle of “complementarity” is designed to allow courts in democratic nations, like Israel, to address their own problems within the rule of law. Only if the judiciary totally fails to address these problems does the court have jurisdiction — even in cases involving parties to the treaty, which Israel is not.

The United States should reject the International Criminal Court decision not only because it is unfair to its ally Israel, but because it sets a dangerous precedent that could be applied against the United States and other nations that operate under the rule of law. Israel should challenge the decision but should cooperate in any investigation, because the truth is its best defense. Whether an investigation conducted by the International Criminal Court can produce the truth is questionable, but the evidence — including real time video and audio — will make it more difficult for ICC investigators to distort reality.

All in all, the International Criminal Court decision on Palestine is a setback for a single standard of human rights. It is a victory for terrorism and an unwillingness to negotiate peace. And it is a strong argument against the United States and Israel joining this biased “court,” and giving it any legitimacy.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School and author of the book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse Publishing, 2019. His new podcast, “The Dershow,” can be seen on Spotify, Apple and YouTube. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.

ICC is creating hatred of Jews and Israel

Last week’s ruling was hardly a surprise. If anything, the surprise is that it took so long

Gerald Steinberg

Jewish Chronicle, February 11, 2021

The latest ICC decision was part of a strategy of “lawfare” launched by a coalition of NGOS at the UN Conference on the Elimination of Racism in Durban, South Africa in 2001  (Source: UN Photo/Ron da Silva). 

The ruling last week by two judges of the International Criminal Court (ICC) endorsing the prosecutor’s jurisdiction over Israel, which is not a state party to the ICC, and “Palestine”, which is not a state, was hardly a surprise. The cynical strategy of using the ICC and vagaries of international law to wage political war was developed more than 20 years ago, and has powerful backers.

If anything, the surprise is that it took so long.

Although these developments are distressing, it is very unlikely that Israelis will actually be arrested or stand trial in The Hague. The actual threat is from adding to the demonisation of Israel as a country of war criminals, deserving of international isolation. These labels, in turn, reinforce incitement and contribute to violent attacks against Israeli and Jewish targets in the name of justice and international law.

This form of lawfare was launched in September 2001, when officials from 1500 non-governmental organizations (NGOs) claiming to promote human rights joined stalwarts like Yassir Arafat at the UN Conference on the Elimination of Racism, which took place in Durban, South Africa. They adopted a declaration accusing Israel of war crimes, genocide and ethnic cleansing. Cynically copying the language and tactics used against the South African apartheid regime, they called for the “complete international isolation of Israel.”

For the twenty years that have followed, these powerful anti-Israel groups joined with Palestinian leaders in consistently pursuing this goal. Their script is entirely predictable — Palestinians launch terror attacks, Israel takes counter-measures to protect its citizens, and these actions are denounced as war crimes. The template was established at the end of March 2002, a few months after Durban. Following horrendous terror attacks, the IDF took control of the suicide bomb hub in the Jenin refugee camp, losing 23 soldiers. Palestinian officials immediately accused Israel of war crimes and a massacre, and these false claims were echoed by NGO officials. The false claims were then quoted by journalists, diplomats and UN officials without any fact-checking.

This strategy has been repeated many times, including during the 2006 Lebanon conflict, and in the Gaza wars between Hamas and the IDF. Each cycle linked Israel with “war crimes”, creating momentum for action by the ICC. This was also the main motivation behind the 2009 UN Human Rights Council investigatory commission on Gaza, led by Judge Richard Goldstone. His 500-page report, consisting of unsupported and largely fictitious NGO accusations, called for action by the UN Security Council, which would have opened the path to the ICC.

South African Judge Richard Goldstone, who put his name on and then repudiated a report that was an earlier manifestation of the same “lawfare” trend which led to the current ICC decision (Source: UN)

Goldstone eventually acknowledged that the report bearing his name was a travesty, and that the allegations were false. While his turnabout did not undo the damage, it slowed the ICC campaign for a short period. But with more terror attacks, along with the Israeli responses, the efforts resumed. ICC prosecutors received the “evidence” delivered by Palestinian officials and the NGO network, and in 2015, the Palestinians officially joined the court (claiming to meet the criteria for a state party). The current prosecutor, Fatou Bensouda, then began to move forward towards a formal investigation.

This long journey aimed at using the ICC to implement the Durban goal of “the complete international isolation of Israel” was led by powerful ideological groups whose leaders have a particular obsession with Israel, and whose repertoire includes antisemitic themes. These include Human Rights Watch, Amnesty International, and the Paris-based International Federation of Human Rights. Without their leadership, the campaign would not have been sustainable.

These NGO superpowers are accompanied by numerous well-financed Palestinian groups, including some linked to the PFLP terror organization, which were established precisely for the purpose of waging lawfare. Many are provided by European governments, in order to weaken Israel, and at least in theory, advancing the cause of peace. Millions of Euros, krona and Swiss francs have been given to the NGOs explicitly for the documentation of Israeli “war crimes” and similar accusations. The failure of the Israeli government to confront the funders and to stop the flow of NGO funds for the ICC campaign has allowed it to continue.

Perhaps the recent developments, which open the door to investigations of individual Israelis and labeling them as war criminals, will spur the government to take effective action against NGOs and their funders. In parallel, a strong effort to cut or condition state funding for the ICC on reversing the politically motivated targeting of Israeli, British, and American officials can also make a difference. Both NGOs and the ICC need budgets to function and this is their primary vulnerability.

Gerald Steinberg is professor emeritus of Political Science at Bar Ilan University and president of the Institute for NGO Research, in Jerusalem.