Nasim Ahmed
Middle East Monitor / December 19, 2024
Controversial American lawyer Alan Dershowitz, reportedly assembling a “legal dream team” to defend Israel at the International Criminal Court (ICC), has faced widespread criticism for displaying ignorance of the court’s jurisdiction. Dershowitz accused the ICC of double standards for failing to prosecute former Syrian President Bashar al-Assad while issuing arrest warrants against Israeli leaders. His remarks have been widely ridiculed by legal experts who pointed out fundamental flaws in his argument.
Commenting on X, Dershowitz – who, as a Jew, is granted automatic right by the state of Israel to settle in the illegally occupied territories, a right not granted to Palestinians ethnically cleansed from their homeland – said: “The ICC has never indicted Assad. Of course, not because he’s neither Israeli nor Jewish. Ireland, South Africa, Canada, and all the other bigoted nations that enable the ICC don’t care about the hundreds of thousands murdered or tortured by Assad. Hypocrisy on stilts!”
The 86-year-old lawyer, known as Israel’s “attack dog,” implied that the ICC’s decision to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant was rooted in anti-Semitism rather than legal considerations. Critics, however, were quick to challenge his claims.
One such critic, legal expert Dr Alonso Gurmendi, took to social media to highlight Dershowitz’s ignorance of international law, sarcastically wishing “luck” to Israel for placing its faith in someone who lacked a basic understanding of ICC jurisdiction. Gurmendi’s remarks reflected a broader consensus among legal experts, many of whom pointed out that Dershowitz’s accusations ignored the ICC’s legal limitations and misrepresented its role in international justice.
Contrary to Dershowitz’s claims, the ICC’s jurisdiction over the West Bank and Gaza Strip stems from Palestine’s accession to the Rome Statute in 2015. In 2021, the ICC’s Pre-Trial Chamber confirmed its territorial jurisdiction over Palestinian territories occupied by Israel since 1967, enabling investigations into alleged war crimes in these areas. This decision was based on Palestine’s status as a state party to the Rome Statute, which granted the ICC jurisdiction over crimes committed within its territory, regardless of the nationality of the alleged perpetrators.
In stark contrast, the ICC lacks jurisdiction over Syria because it is not a party to the Rome Statute. The only alternative mechanism for ICC involvement in Syria would be a referral by the UN Security Council. However, such efforts have been repeatedly blocked by Russia and China, both of whom wield veto power and are staunch allies of Assad’s regime. In 2014, a resolution to refer Syria to the ICC was vetoed, effectively shielding the Syrian government from accountability under international law. These legal and political realities debunk Dershowitz’s claim that the ICC’s inaction on Assad is evidence of bias or hypocrisy.
Dershowitz’s accusation that the ICC is motivated by anti-Semitism also fails to consider the proactive efforts made by individual European nations to prosecute war criminals under the principle of universal jurisdiction. This legal doctrine allows national courts to prosecute individuals for serious international crimes, such as genocide and crimes against humanity, regardless of where they were committed. In recent years, European countries have taken significant steps to hold Syrian officials accountable, undermining Dershowitz’s portrayal of international apathy toward Al-Assad’s atrocities.
For instance, French judges issued international arrest warrants in 2023 for Bashar Al-Assad, his brother Maher Al-Assad, and two senior military officials, accusing them of complicity in crimes against humanity, including chemical attacks in 2013. Similarly, Germany has been at the forefront of prosecuting Syrian war crimes. In June 2018, German prosecutors issued an arrest warrant for Jamil Hassan, the head of Syria’s Air Force Intelligence Directorate, accusing him of overseeing torture, murder and other crimes against humanity. These efforts culminated in the landmark trial in Koblenz, Germany, where a former Syrian intelligence officer was convicted of crimes against humanity in 2022, marking the first such conviction for a high-ranking official from Assad’s regime.
These cases demonstrate that the international community has not turned a blind eye to Assad’s crimes. Instead, they highlight how legal frameworks, such as universal jurisdiction, can complement international efforts to pursue justice when the ICC’s hands are tied. Dershowitz’s failure to acknowledge these developments underscores the inadequacy of his argument and raises questions about his credibility as a defender of international law.
Dershowitz’s claims also ignore the potential for future ICC involvement in Syria. Legal experts suggest that a post-Assad Syrian government could retroactively join the Rome Statute, granting the ICC jurisdiction over crimes committed during the civil war. This would enable the court to investigate and prosecute Al-Assad and his collaborators for alleged war crimes and crimes against humanity. However, significant challenges remain, including Russia’s likely refusal to extradite Al-Assad, even under a new Syrian regime.
Domestically, Syria’s transitional government could pursue justice through its own legal system, provided it undergoes significant reform. Experts recommend incorporating provisions for war crimes and crimes against humanity into Syria’s penal code to enable credible prosecutions. A hybrid model, blending Syrian judicial structures with international expertise, may be necessary to ensure the fairness and legitimacy of such trials. Evidence preservation will be a critical factor in these efforts. Mass graves, secret service documents and prison records must be professionally handled to prevent the loss or destruction of crucial evidence.
Dershowitz’s comments also ignore the broader context of international justice, where political and logistical challenges often impede accountability for high-profile crimes. The ICC’s focus on Israeli-occupied territories reflects its jurisdictional mandate rather than bias, as Dershowitz suggests. By contrast, the court’s inability to prosecute Al-Assad stems from Syria’s non-membership in the Rome Statute and the geopolitical realities of the UN Security Council.
The disparity in how crimes in Israel-Palestine and Syria are addressed is not evidence of double standards but a reflection of the limitations of the international legal system. While the ICC has jurisdiction over Israeli leaders due to Palestine’s legal status, it cannot act in Syria without the cooperation of the Syrian government or a Security Council referral. Even so, European nations have stepped in to fill the gap, despite failing to do so in the case of Israel’s Gaza genocide, demonstrating a commitment to accountability that Dershowitz conveniently overlooks.
Dershowitz’s attempt to frame the ICC’s actions as anti-Semitic also fails to account for the broader complexities of international law and politics. His remarks suggest a lack of understanding of the challenges involved in prosecuting sitting heads of state and high-ranking officials, particularly in the face of geopolitical obstacles. Far from exposing bias, his comments reveal his own misapprehensions and undermine his credibility as a legal expert.
Dershowitz’s criticism of the ICC reveals a fundamental misunderstanding of how international law operates and disregards the substantial efforts made by nations to pursue justice for war crimes. His claims of anti-Semitism not only lack evidence but distract from the realities of legal constraints and geopolitical challenges. Far from being ignored, Al-Assad and his regime have been targeted through European legal actions, while the ICC’s jurisdiction over Israeli-occupied territories is grounded in clear legal precedent. Dershowitz’s remarks, rather than exposing bias, highlight his failure to grasp basic facts.
Nasim Ahmed is a political analyst
