International Criminal Court opens war-crimes probe targeting Israel

By Sean Savage

(JNS) The chief prosecutor of the International Criminal Court in the Hague announced on Wednesday, March 3, her intention to open an investigation into war crimes allegedly committed by Israelis and Palestinians since 2014.

The announcement was strongly denounced by Israel, but welcomed by the Palestinian Authority, which had requested the probe. It comes less than a month after the ICC ruled that it had jurisdiction to open an investigation.

“The investigation will cover crimes within the jurisdiction of the court that are alleged to have been committed in the situation since 13 June 2014, the date to which reference is made in the referral of the situation to my office,” said Chief Prosecutor Fatou Bensouda in a statement. “Any investigation undertaken by the office will be conducted independently, impartially and objectively, without fear or favor.”

By choosing June 13, 2014, as the start date for the investigation, it will not look into the murder of three Israeli Jewish teenagers–Eyal Yifrach, Gilad Shaar and Naftali Frenkel–that happened the day before.

“The decision to open an investigation followed a painstaking preliminary examination undertaken by my office that lasted close to five years,” wrote Bensouda. “During that period, and in accordance with our normal practice, the office engaged with a wide array of stakeholders, including in regular and productive meetings with representatives of the Governments of Palestine and Israel, respectively.”

“We have no agenda other than to meet our statutory duties under the Rome Statute with professional integrity,” she added.

Israeli Prime Minister Benjamin Netanyahu blasted the ICC investigation, calling it “the epitome of antisemitism and hypocrisy.”

Similarly, Israel’s President Reuven Rivlin called the decision to investigate Israel “scandalous.”

“We will not accept claims against the exercise of our right and our obligation to defend our citizens. The State of Israel is a strong, Jewish and democratic state that knows how to defend itself and to investigate itself when necessary,” he said in a statement.

However, the P.A. praised the decision, saying that it would be ready to provide “any assistance required … to realize justice for the Palestinian people.”

“This long-awaited step serves Palestine’s tireless endeavor to achieve justice and accountability, which are indispensable foundations for the peace that the Palestinian people demand and deserve,” said the P.A. Foreign Ministry.

Hamas also welcomed the decision by the ICC; however, the Palestinian terror group is also directly implicated in the war crimes the court is investigating. Hamas has said that the terror group’s actions are “legitimate resistance.”

Orde Kittrie, senior fellow at the Foundation for Defense of Democracies, told JNS that the decision is “politically driven.”

“It is contrary to international law, the ICC’s legal mandate and the institutional interests of the International Criminal Court,” he said.

Kittrie argued that the ICC has no jurisdiction in this case and that it has been backed up by several countries around the world.

“Bensouda has claimed ICC jurisdiction over alleged Israeli war crimes because they occurred in the Palestinian Authority, which has purported to join the ICC as a state. However, Palestine’s status as a state for ICC purposes has been refuted by numerous submissions to the ICC, including by the Obama administration’s point persons for ICC issues and by several European and other governments, including those of Australia, Canada, the Czech Republic and Germany.”

U.S. State Department has ‘serious concerns’

While Israel and several world powers – the United States, Russia, China and India – are not members of the ICC, any decisions by the court could make life difficult for Israeli officials and military leaders.

Although the ICC doesn’t try states, it can target individuals with international arrest warrants. Israel is concerned that its officials and military officers could face arrest warrants, while also providing a boost to the BDS campaign against the Jewish state.

Professor Eugene Kontorovich, director of International Law at the Jerusalem-based Kohelet Policy Forum, told JNS that the investigation highlights how the ICC has become a politicized tool to attack Israel.

“The decision has no basis in law or precedent; rather, the ICC has become just another anti-Israel international organization. But it is important to remember that the Palestinian Authority brought this about, in contradiction of all their commitments under Oslo. Israel cannot be expected by the Biden Administration to negotiate with the P.A. while under an investigation instigated by the P.A.,” he said.

Indeed, the ICC investigation may force the Biden administration to get more involved in the Israeli-Palestinian conflict at a time when it is dealing with other more pressing foreign and domestic concerns.

Last year, the Trump administration imposed sanctions on top officials in the ICC, including Bensouda and Phakiso Mochochoko, head of the court’s Jurisdiction, Complementarity and Cooperation Division. These sanctions, which were over the court’s attempts to prosecute U.S. soldiers in Afghanistan, included revoking visas of ICC officials.

The U.S. State Department said last month that it had “serious concerns” over the ICC’s ruling on its jurisdiction to investigate Israel and that it represented a biased attack on the Jewish state. More recently, a bipartisan group of senators urged U.S. Secretary of State Tony Blinken to more strongly denounce the ICC’s investigation. (See story p.15)

The investigation comes as Bensouda’s term nears its end. U.K. prosecutor Karim Khan is set to take over in June and could decide to end the probe.

“Bensouda’s aggressive move against Israel is also surprising from an institutional perspective. It comes just three weeks after Karim Khan, a respected British attorney, was elected to replace Bensouda when her term expires on June 15. Khan defeated Fergal Gaynor, an Irish attorney who has long been the leading outside advocate of the ICC investigations of the United States and Israel. Bensouda appears to be trying to box in her successor,” explained Kittrie.

Kittrie said that it appears that Bensouda–who has faced criticism from an independent investigation last year over her leadership of the ICC, including allegations of bullying and sexual harassment under her watch–may be trying to prevent herself from facing legal jeopardy. “Bensouda appears to be taking these inappropriate steps on her way out the door in an effort to distract from her mismanagement of the ICC and perhaps try to insulate herself from legal jeopardy by appealing to anti-U.S. sentiments,” he said.

Kittrie said she is going “beyond the ICC’s mandate to pursue the United States and Israel, non-members of the ICC, for how they defend themselves against terrorism while leading her own senior staff to believe they are immune from any consequences for sexual harassment.”

Pro-Israel, Jewish groups react to ICC decision

(JNS) Pro-Israel and Jewish groups weighed in on the controversial decision announced on Wednesday, March 3, by the International Criminal Court that it would open its investigation into alleged war crimes conducted by Israel and the Palestinians since 2014.

AIPAC said that the ICC investigation into Israel represents “significant overreaches of the ICC’s mandate and jurisdiction that must be condemned by the administration and Congress.”

The lobby group called on Biden to maintain sanctions on the ICC. It also pushed that “the administration must continue to enforce U.S. law which prohibits assistance to the Palestinian Authority and the maintenance of a Palestine Liberation Organization office in Washington due to the P.A.’s active support for the ICC’s investigation of Israel.”

President of B’nai B’rith International Charles Kaufman and CEO Daniel Mariaschin said that there is “no moral or legal equivalence whatsoever between Israel, a democratic state seeking responsibly to protect the lives of its diverse civilian population, and Palestinian terrorist groups openly committed to indiscriminate atrocities and the very destruction of the Jewish state.”

“Above all, the acquiescence of the prosecutor to politicize the ICC and exploit it as a propaganda tool not only batters the standing of the court and distracts it from truly grievous and systematic crimes around the world, but also intolerably stands to handicap law-abiding nations’ abilities, rights and fundamental duties to combat the brutal asymmetric warfare of terrorist organizations,” they said.

Rabbi Jonathan Guttentag, international liaison of the Coalition for Jewish Values, said the “ICC said nothing while Hamas lobbed thousands of missiles at Israeli cities, awakening only once Israel responded. By ‘investigating’ defense against terrorism, the International Criminal Court is openly encouraging terror and the murder of [Jewish] civilians, while also calling it a crime for Jews to live in Judea.”

Guttentag added: “The inherent moral equivalence of an ICC investigation targeting both Hamas, an internationally recognized terror organization with genocide enshrined in its charter, and the IDF, an army recognized for its high moral standards in warfare, has dark overtones of classic Jew-hatred.”

Chairman Arthur Stark, CEO William Daroff and Malcolm Hoenlein, vice chair of the Conference of Presidents of Major American Jewish Organizations, said in a statement that “by continuing these efforts to weaponize a judicial institution for political purposes, the Palestinian Authority inflames existing tensions and obstructs the path to peace. The only solution to the Israeli-Palestinian conflict is direct, bilateral negotiations between the two parties involved. We call on the international community to speak out in forceful objection to this disgraceful action by the ICC.”

The left-wing Jewish group Americans for Peace Now did not condemn the decision, saying instead that it highlighted the need for Israel to “end its occupation.” Pro-Israel Christian groups generally condemned the ICC decision.

International Christian Embassy Jerusalem president Jürgen Bühler noted that “this indefensible move by the outgoing ICC chief prosecutor Fatou Bensouda is a shocking display of a vanishing moral conscience within the international community. This probe completely undermines the credibility and impartiality of the International Criminal Court and only draws comparison to some of the past blood libels against the Jewish people.”

Senators urge Blinken to more strongly condemn ICC war-crimes probe of Israel

(JNS) Sens. Ben Cardin (D-Md.) and Rob Portman (R-Ohio) are urging U.S. Secretary of State Tony Blinken to take a stronger position against the International Criminal Court’s ruling that it has jurisdiction to open a war-crimes investigation against Israel.

In a letter circulating among their colleagues and obtained by Haaretz, the two senators said Blinken should “issue a more forceful condemnation of the court’s actions” after the ICC announced on Feb. 5 that it has territorial jurisdiction to investigate Israel for committing war crimes in the West Bank, eastern Jerusalem and the Gaza Strip.

The U.S. State Department came out with a statement expressing “serious concerns” about the ruling and opposing the court’s “attempts to exercise its jurisdiction over Israeli personnel.” Cardin and Portman, both members of the Senate Foreign Relations Committee, are now calling for more action from Blinken.

“We also urge you to work with like-minded international partners to steer the ICC away from further actions that could damage the court’s credibility by giving the appearance of political bias,” said the letter. “We ask that you give this matter your full attention and that you continue to defend Israel against discriminatory attacks in all international fora.”

Cardin and Portman said they are “concerned that the court’s recent actions” have “inappropriately infused politics into the judicial process.”

“The ICC’s mandate should not supersede Israel’s robust judicial system, including its military justice system,” added the senators, explaining that “it is not within the authority of the ICC to accept or deny any party’s claims to these disputed territories, nor has the court ever before formally investigated allegations taking place in disputed territories. This unprecedented action by the ICC’s Pre-Trial Chamber unfairly targets Israel, biases any subsequent investigation or trial, and hinders the path towards regional peace.”

Main Photo: International Criminal Court building (2016) in The Hague, Photo by OSeveno via Wikimedia Commons