Maureen Clare Murphy
The Electronic Intifada / March 19, 2021
A lack of moral authority has never stopped Israeli leaders from accusing others of the same.
And so Israel’s president, Reuven Rivlin, has been deployed to Europe, where he is attempting to make the case that the International Criminal Court’s investigation of suspected war crimes in the West Bank and Gaza “is morally and legally bankrupt.”
Similarly, moral and logical inconsistency didn’t stop Michal Cotler-Wunsh, an Israeli lawmaker who sought to condition the transfer of COVID-19 vaccine doses to Gaza on Hamas concessions, from accusing the ICC of “politicization.”
Cotler-Wunsh invoked a discredited definition of anti-Semitism pushed by lobby groups seeking to muffle criticism of Israel, saying the court is singling out and applying double standards “against the Jewish state.”
Never mind that the ICC will examine alleged war crimes perpetrated by Palestinian armed groups, as the court’s chief prosecutor made clear upon the conclusion of her five-year preliminary probe in late 2019.
An entirely possible outcome of an ICC investigation is that the court only indicts individuals in Palestinian armed groups.
The ICC defers to a country’s internal investigations, where they exist, under the principle of complementarity which holds that “states have the first responsibility and right to prosecute international crimes.”
Israel has a self-investigation system – albeit one described by B’Tselem, a leading human rights group in the country, as a whitewashing mechanism that insulates the military and political leadership from accountability.
The ICC chief prosecutor stated in late 2019 that her office’s assessment “of the scope and genuineness” of Israel’s domestic proceedings “remains ongoing at this stage.”
She had, however, “concluded that the potential cases concerning crimes allegedly committed by members of Hamas and PAGs [Palestinian armed groups] would currently be admissible.”
But Israeli officials haven’t let facts or sober analysis get in the way of their knee-jerk reaction against the court.
Related to the “double standards” argument against the court’s credibility put forth by Cotler-Wunsh and others is that it hasn’t probed alleged war crimes in Syria.
That argument, too, is dependent on ignoring the facts.
While Syria is a signatory to the Rome Statute that founded the court, it has not ratified the statute or acceded to the court and thus the international justice tribunal cannot exercise territorial jurisdiction in the country.
Israel is not an ICC member state either, but Palestine is, and the court launched its probe upon the latter’s request.
Last year, a panel of judges affirmed that the court has territorial jurisdiction in the West Bank and Gaza.
The ICC may also exercise personal jurisdiction in cases when a national of an ICC member state engages in war crimes in the territory of a non-state party.
The UN Security Council may also potentially override personal and territorial jurisdiction by referring cases to the ICC.
Security Council member states have tried to do that with Syria but were vetoed by Russia and China.
On Wednesday, Russia’s foreign minister assured his Israeli counterpart that Moscow, like Tel Aviv, is “rather negative” about the ICC.
Another argument made by Israeli officials, as well as the state’s apologists, is that an ICC investigation would hurt the peace process, long declared dead by everybody except those whose salaries depend on maintaining the charade.
Despite this supposed concern for negotiations with the Palestinians, a new multilateral initiative to revive the peace process was immediately shot down by Israel, Axios reported last month.
Israel is focusing its diplomatic efforts instead on the perceived threats of Hizballah, Iran and the ICC as its president, foreign minister and military chief tour Europe.
Whether Israel will cooperate with the court is being debated by its government following formal notification of an investigation by the ICC earlier this month.
The letter from the ICC identified the three main issues the court intends to investigate: Israel’s 2014 attack on Gaza; its settlement enterprise in the West Bank; and the use of lethal force against Great March of Return protesters.
Israeli media have reported that officials are “concerned the ICC may already start issuing arrest warrants” against former military officers in the coming months.
Israeli officials claim that some ICC member states “have agreed to give advance warning to Israel of any intent to arrest” its citizens upon arrival to their countries.
Providing tip-offs that could allow suspects to escape investigation or arrest would likely violate the obligations that member states have under the Rome Statute to cooperate with the court’s work.
This week, hundreds of human rights groups urged ICC member states “to publicly support and fully cooperate” with the investigation.
The groups urged states “to ensure the arrest and transfer to The Hague of persons investigated and accused of international crimes.”
Maureen Clare Murphy is an associate editor of The Electronic Intifada and lives in Chicago