False ICC Accusations Against the U.S. and Israel Underscore the Value of Our Alliance
By Jim Sinkinson
FLAME
June 16, 2020
In
response to a demand by some 300 U.S. Representatives and Senators to
stop “politically motivated investigations” by the International
Criminal Court (ICC) into the U.S. and Israel, the U.S. State Department
announced economic and travel restrictions on officers of the
Hague-based court.
The bipartisan group of U.S. elected officials noted that the court
should only be “a last resort for the prosecution of the most serious
international crimes.”
Once again, we see the interests of the U.S. and Israel align uniquely—this time because the ICC chooses to function not as an enforcer of international law, but as a political tool of our common enemies.
These two recent, unrelated ICC actions only reinforce the wisdom—indeed, the necessity—of
the U.S. and Israel pursuing justice independently of international
bodies like the U.N. and ICC . . . and of continuing to support each
other as steadfast allies.
At the heart of the conflict with the International Criminal Court is
its determination to pursue political agendas far outside its charter as
a legal body. In fact, in both these cases, the ICC is
ignoring the fundamentals of fairness—equal treatment and consistent
application of the law.
Let’s start with the essential purpose of the ICC, which was set up by
the U.N. under the Rome Statute in 2002: To prosecute a) the most heinous international crimes b) in the absence of a capable national court.
As we’ll see, neither the actions of the U.S. or Israel under
consideration by the ICC even remotely rise to the level of “heinous.”
But more importantly, few countries on earth have internal justice
systems as rigorous than those of Israel or the United States.
In addition, neither the U.S. nor Israel are members of the ICC, so
technically neither is subject to ICC authority. In other words, since
the court completely lacks legal jurisdiction in these matters, it’s only purpose can be to politically smear the U.S. and Israel.
Thus, according to the ICC’s own core mission, both prosecutions are
extra-judicial and inappropriate—not only a misuse of time and money,
but essentially unjust.
But the travesty continues: In order to justify these politically
prosecutions, the ICC has to ignore actual international law.
The case against Israel has been mounted by the Palestinians on two charges:
1) Jews are creating “illegal” communities in Judea-Samaria (aka the
West Bank) and eastern Jerusalem—both technically disputed territories;
and 2) Israel used disproportionate force in 2018 and 2019 in defending
its borders as Gazan Palestinians tried to breach them.
In order to justify these charges, however, the ICC’s chief prosecutor
Fatou Bensouda has made the ruling that “Palestine” is a state—which it is not under international law.
At least seven nations—all signatories to the Rome Statute—including
Australia, Austria, Brazil, Czech Republic, Germany, Hungary and Uganda,
have filed friend-of-the-court briefs advising Bensouda that
“Palestine” is not a state.
In an even greater affront to fairness, the charges the ICC is
considering against Israel make no mention of Arab terrorism or Gaza
rocket attacks against Israeli civilians. Unsurprisingly, the ICC has never formally investigated any war crimes by Palestinians,
including financial support of suicide bombing or location of missile
launchers and Hamas military headquarters in schools and hospitals.
ICC accusations against the United States for war crimes include “acts
of torture, cruel treatment, outrages upon personal dignity, rape and
sexual violence” in Afghanistan (as well as related clandestine
activities at CIA facilities in Poland, Romania and Lithuania).
We should note, however: Afghanistan has objected to the ICC’s inquiry,
as it is conducting its own investigation, and neither Poland, Romania
or Lithuania are parties to the ICC action.
Just as bizarre from a judicial standpoint is the fact the court is
attempting to try Israel for a “crime” for which the court has never
indicted any other country —neither Turkey for its illegal 1974 conquest of part of Cypress, nor Russia for its 2014 invasion and annexation of Crimea.
Both Turkey and Russia violently seized territories that were
undisputedly parts of sovereign nations: If any countries deserve
prosecution by the ICC, these two do.
On the other hand, territories in question in the Holy Land were never
under the sovereignty of the Palestinians. Rather, these lands west of
the Jordan River were ceded to Israel in 1920 by the San Remo Accord and
later ratified by the League of Nations and the United Nations.
Jordan, which briefly seized control of Judea-Samaria, was thrown out
by Israel in 1967, and Jordan released its claim to these lands to
Israel in 1994. In fact, Israel has greater claim to this territory than any nation on earth. The Palestinians have never had sovereignty over any land.
Eugene Kontorovich, director of International Law at the
Jerusalem-based Kohelet Policy Forum and director of the Center for
International Law in the Middle East at George Mason University noted
that Bensouda “has come to the absurd decision that a non-country can
sue a non-member of the ICC for a non-crime that nobody has ever been
prosecuted for.”
Finally, the ICC has shown indisputable political bias.
When the Rome Statute was originally drafted, the Arab League pressured
negotiators to criminalize Israel for allowing its own civilians to
move into Judea-Samaria. The Statute’s definition of international
aggression also compromises national rights to self-defense.
No wonder most U.N. Security Council permanent members (including the
United States) and emerging global powers (like Israel) declined to sign
the Rome Statute and become members of the International Criminal
Court.
What’s worse, according to a report by the Jerusalem Center for Public
Affairs (JCPA), the ICC’s case against the U.S. originated by two
nonprofit advocacy groups—the International Federation of Human Rights
and the Center for Constitutional Rights, both related to the Palestinian NGOs that brought the complaint against Israel to the ICC.
As shown in the JCPA report, the Palestinian NGOs “maintain strong ties
to the designated terror organizations Hamas and the Popular Front for
the Liberation of Palestine.” These organizations are certainly not
friends of the U.S. or Israel.
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