ICC blues

Legal issuesSue the Palestinian Authority for Hamas war crimes

When life gives you lemonsmake lemonade.

It seems very likely that the International Criminal Court (ICC) will decide to try Israel for alleged war crimes. They have already recognised the ‘State’ of Palestine, a victory for Palestinian weaponising of the ICC, even if the case never goes to trial.

Although I appreciate the reasons Israel (and America) have refused to sign on to the court I am worried that she will make the same mistake she made with the International Court of Justice (ICJ) of surrendering the field of battle to the enemy. I am concerned the court will rule against us in our absence.

Instead of taking the advantage, outclassing and outmaneuvering her opponents in court Israel is constantly ‘on the back foot’. Defensive rather than attacking.

We shouldn’t be. One thing Israel is not short of, is lawyers.

Let’s make some lemonade. 

red nose Fatiu Bensouda

Fatou Bensouda,
ICC chief prosecutor since June 2012

Every time the issue of ICC comes up on social media I try to respond on the lines of:

If Palestine is a suitable state to bring charges in the ICC it is suitable to be charged with Hamas war crimes in Gaza.

I encourage you to do the same.

Five Minutes for Israel discussed Hamas war crimes in Criminals call for court in 2014 and added an extra discussion of aerial incendiaries in Like a lead balloon last year.

Although 5MFI hasn’t written about it, the death of at least 160 children used to dig their terror tunnels is another undisputed war crime to be added to the charges.

All these war crimes are quite unlike the tendentious interpretation of article 49. of the 4th Geneva Convention on which the Palestinian Authority bases their claims. They involve intended death and destruction, far more serious and far more numerous, than building some houses.

Dodging the bullet


Tzipi Livni escaped war crimes charges

Israel’s approach to the lawfare waged by the Palestinians has been avoidance. It has kept Israelis out of court but on the other hand always gave a propaganda victory for the opposition.

Partly this is due to the media coverage the issue raises as the Israel Haters seize the initiative. The charge is front page news while the boring technical and jurisdictional issues make page 10. days later, if at all.

Partly this is due to a not unreasonable supposition by many that avoiding their day in court is an admission of guilt.

Here are some examples:

  • Former Israeli army General Doron Almog escaped arrest by staying on his plane for two hours then flying back home;
  • War crimes case against former Chief of General Staff of the Israel Defense Forces (IDF) and current Deputy Prime Minister of Israel, Minister of Defense. Benny Gantz were dismissed by the Dutch Court for lack of jurisdiction. Technically they decided that universal jurisdiction applied in criminal not civil cases. (YAWN).
  • Former Foreign Minister Tzipi Livni dodged arrest in London when she attended the  Fortune Most Powerful Women International Summit using the loophole of immunity due to her position. (Not so powerful, I guess). I have heard that she offered to allow herself to be arrested but clearly nothing came of that.

However the most damaging example concerned the International Court of Justice (not to be confused with the International Criminal Court) in the case against Israel’s separation fence. Or in their words Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.

Simplifying the arguments. Israel refused to take part citing lack of jurisdiction due to their lack of consent to take part. The court ruled that they did not need consent when giving an advisory judgement.

Forty-five states and organisation including Palestine, the United Nations and subsequently, at their request, the League of Arab States(!) and the Organization of the Islamic Conference(!) gave evidence. Israel did not.

To this day the advisory judgement is cited as evidence of Israeli illegality. The opportunity to present all the arguments reader have seen in social media and elsewhere was lost.

Yossi Beilin

Yossi Beilin

Yossi Beilin

Ironically, former Justice Minister Yossi Beilin, one of the men most responsible for the current mess, due to forcing the Oslo Agreement on Israel, may have a point. (Stopped clocks give correct time every twelve hours).

He wants Israel to ratify the Rome Statute and become a member of the International Criminal Court.

Yet even he speaks in terms of dodging court appearances rather than proclaiming Israel’s innocence before judges.

If Beilin is correct (international law experts please help me out here) joining the court will give Israel a seven-year deferral of action. If Israel chooses to cite the settlement issue, the ICC will not be authorized to arrest any Israeli on that count until 2028.

Should Israel counter sue (international law experts please help me out here, as well) the court may defer the issue for investigation, a procedure that may take years, as has the Palestinian suit. We could need those seven years.

Also, the threat value of a counter suit will not force the Palestinians to withdraw if they think it only a potential problems in the future and not an issue to be decided together with their bogus claims.

Every time the issue of ICC comes up on social media try to respond on the lines of:

If Palestine is a suitable state to bring charges in the ICC it is suitable to be charged with Hamas war crimes in Gaza.

Extra credit,

Tzipi Livni photographed by Tal Givony (טל גבעוני) – Tal Givony, CC BY-SA 3.0, Link

About David Guy

B.A./B.C.A. (Communication and Media Arts) University of Wollongong, AUSTRALIA M.A. in Government (Diplomacy and Conflict Studies) Inter Disciplinary Center, Herzliya, ISRAEL Twitter @5MFI
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