Running out of steam: Israel’s empty objections to the International Criminal Court

The building of the International Criminal Court in the Hague.

The Ambassador of Israel in The Netherlands, Eitan Margalit spoke to an audience of mainly international lawyers on 20 November 2003 in The Hague, followed by an outpouring of criticism. Even a sympathetic observer present at the lecture would not fail to have noticed how thin the Israeli government’s arguments have become in objecting to the International Criminal Court (ICC). The Israeli government’s insistence upon the “rule of law” yet refusal to submit to a supranational court is blatantly hypocritical.

Circular Nature of Israel’s Arguments

The arguments raised by the Israeli Ambassador in his lecture, the latest in a series of lectures organised by the Grotius Centre of the University of Leiden, T.M.C. Asser Institute and Coalition for the International Criminal Court, were nothing new to those who have followed the government’s position on this issue. Many are familiar with the circular nature of their arguments, namely: what is not politically comfortable should not be legally provided for, and what is legally provided for should not be prosecuted if it is politically uncomfortable.

But even for those unfamiliar with the Israeli government’s position on this issue, the main legal arguments that have been raised by Israel in their objection to the ICC were striking in their simplicity. The Israeli government’s substantive objections essentially cover two areas, namely: the selection of certain offences and impartiality of the ICC.

Objection to the exclusion of certain offences

Israel has previously expressed disappointment that offences such as drug trafficking and terrorism were not included in the list of offences that the court had jurisdiction over. Expecting the court to handle drug trafficking offences is both unrealistic and misplaced, given (as Israel itself admits) that it was established with the explicit aim of prosecuting the most serious international crimes: war crimes and crimes against humanity. Israel, which repeatedly has referred to the holocaust as such a crime against humanity that should not go unpunished, should know better than to insist that the ICC handle such a wide range of crimes. Regarding terrorism, it is widely agreed that it would be irresponsible to include an offence for which no generally accepted definition exists. As Professor Jonathan Dugard of the University of Leiden, member of the International Law Commission and special rapporteur of the UN Commission on Human Rights on the Occupied Palestinian Territory explained at a previous lecture in the series, it will continue to be impossible to find a definition of terrorism so long as there continue to be highly polarised conflicts in the world, including instability in the Middle East.

Objection to the inclusion of certain offences

But the Ambassador merely raised objection in his lecture to just one offence contained in the ICC Statute, namely reference to “individual or mass transfers as well as deportations of protected persons from occupied territory”. Israel has previously insisted that this is the clearest example of distorting existing principles of international law, as part of a political agenda. But this is both dishonest and bitterly ironic. Thousands upon thousands of Jews were forcibly displaced (individually and en masse) by the nazi regime during the holocaust. This terrible crime was one of the principal reasons for criminalizing this reprehensible activity and the forcible transfer of people was consequently provided for in article 49 to the 1949 Geneva Convention, now widely considered to be an established, binding principle of international law.

In other words, this is not a new provision, nor indeed are Israel’s subsequent objections to it. The United Nations, International Committee of the Red Cross and multiple international law experts have repeatedly stated that the presence of Israel in Palestinian ‘autonomous’ areas, and in particular the building of settlements, is in violation of Article 49(6) of the Geneva Convention, “constituting a threat to peace and security in the region”.

But, despite this overwhelming consensus of opinion, a succession of international lawyers advocating on behalf of the government’s position have earnestly tried to “reinterpret” this provision in order to avoid references to both Jewish settlements in the West Bank and Gaza and the Israeli government’s policy of forcible transfers of those who they suspect of crimes against the Israeli state, but (for whatever reason) decide not to bring to trial.

Objections to the ICC’s independence

This leaves the Israeli government’s objections to the independence of the judges and the prosecutor, which the ambassador was wise to avoid specific reference to in his lecture at the Grotius Centre, preferring instead to rather vaguely claim that cases might be brought for “political reasons”. Indeed to insist on this as a basis for objecting to the jurisdiction of the ICC would be a gross insult to the integrity of the staff of the ICC, all of whom were scrupulously selected from all parts of the world.

Long live the Rule of Law, but for whom?

Amazingly, the Israeli ambassador insisted in his lecture that the “rule of law will help resolve conflicts … and to stop impunity”, yet in his next sentence stated that the Geneva Conventions were “rejected very much” by the Israeli government. The underlying message is a double standard, namely that Israel wants to stop impunity for human rights violations, but in no way feels it should be possible that any of their own nationals ever be charged with such violations.

Such a hypocritical position mirrors the arguments provided by the United States that its military be immune from prosecution by the ICC. Consequently, the United States has taken great effort to secure commitments from individual countries that they will not extradite US soldiers to the jurisdiction of the ICC. Israel is, incidentally, one of the few countries to have signed such an agreement.

Perhaps as a recognition of this obvious duplicity in Israel’s position, prominent legal academics in Israel such as Professors Yoram Schahar and Natan Lerner of the Herzliya Inter Disciplinary Centre have suggested that Israel ratify the ICC Statute despite prevailing concerns, insisting that, “the ICC and its development is such an important unique and fascinating evolution that Israel cannot afford not to be a part of it”.

Jeff Handmaker is a Jewish human rights lawyer, based in The Netherlands.

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