Yes, The Hague is right to investigate Israel for war crimes

Benjamin Nentayahu (screenshot)

Larry Derfner

Mondoweiss  /  March 4, 2021

There’s a natural resistance to saying that your country deserves to be investigated for war crimes by the International Criminal Court in The Hague. But if you believe that Israel’s open-ended occupation and the settlements and lethal onslaughts in Gaza that go with it are morally untenable, how do you avoid that conclusion?

The arguments against an investigation, whose formal initiation was announced Wednesday by ICC Chief Prosecutor Fatou Bensouda, don’t stand up. For instance, the argument that such an investigation would be unfair because there are so many countries doing worse things than Israel does. “[T]he ICC refuses to investigate brutal dictatorships like Iran and Syria,” Prime Minister Benjamin Netanyahu said in response to the court’s decision last month clearing the way for the probe, calling that ruling “pure antisemitism.” He used the same term to characterize Wednesday’s  decision to launch the investigation.

I suspect Netanyahu knows the real reason why the ICC doesn’t investigate Iran or Syria – or China, or North Korea, or Zimbabwe, or Eritrea, or Saudi Arabia, or Yemen, or a number of other regimes whose criminality exceeds or dwarfs Israel’s. It’s because the wrongs these regimes commit don’t affect a state that has granted the ICC jurisdiction over it by signing the Rome Statute.

Neither Iran, nor Syria nor any of the other countries named above are terrorizing states that have signed the Rome Statute; they are terrorizing their own people, who live in states that have not signed the statute, so unfortunately North Korea, Zimbabwe, etc. are free to plague their citizens as much as they want and they will fall outside the ICC’s purview. In some cases, such as Saudi Arabia and Iran’s actions in Yemen, their persecution is taking place in a foreign state, but that state has not granted jurisdiction to The Hague, either, so there’s nothing the court can do. (An exception is if a country has been referred to the court by the UN Security Council, such as Sudan was for committing genocide in its Darfur region, which the ICC is investigating even though Sudan hasn’t signed the Rome Statute.) The court was set up by international agreement, and this was the limitation placed upon it.

Israel hasn’t signed the Rome Statute either, but the difference in this case is that Palestine has. Palestine – recognized by the UN General Assembly as the West Bank, East Jerusalem and Gaza – is where Israel’s persecution has been taking place. It was the government of Palestine, the Palestinian Authority, that asked the ICC to investigate Israel for war crimes.

This is why the court is investigating Israel but not Iran, Syria and so many other state malefactors.

The ultimate Israeli argument against a war crimes investigation is, of course, that Israel isn’t committing any war crimes against the Palestinians. All Israel is doing, said Netanyahu, is “defend[ing] itself against terrorists who murder our children and rocket our cities.”

Let’s see. The Hague defines war crimes mainly as “grave breaches” of the Geneva Conventions, which are:

“i) wilful killing; ii) torture or inhuman treatment, including biological experiments; iii) wilfully causing great suffering or serious injury to body or health; iv) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; v) compelling a prisoner of war or other protected person [civilian] to serve in the forces of a hostile Power; vi) wilfully depriving a prisoner of war or other protected person [civilian] of the rights of fair and regular trial; vii) unlawful deportation or transfer or unlawful confinement; vii) taking of hostages.”

Also under the heading of war crimes, the ICC lists “serious violations of the laws and customs applicable in international armed conflict.” They include this one:

“The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies …” Sounds like West Bank settlements, doesn’t it?

So if you throw out the (ii) biological experiments and (v) forced conscription under “grave breaches of the Geneva Conventions,” is it really so outrageous to investigate Israel for war crimes against the Palestinians?

In one way it seems unfair because so many worse and far worse offenders are free from war crimes tribunals simply because they commit their crimes in places that are off-limits to them.

But just because the ICC, through no fault of its own, can’t go after all the world’s war criminals, or even necessarily the worst ones, does that mean it should throw in the towel even on those it can investigate? In addition to Israel, the court is now investigating  Congo, Uganda, Sudan, Central African Republic, Kenya, Libya, Ivory Coast, Mali, Georgia, Burundi, Bangladesh/Myanmar and Afghanistan. Should it drop those cases because there may be comparable or even worse war criminals in Syria, Nigeria, Eritrea, China or other countries that are beyond The Hague’s reach? Since it’s not allowed to bring every war criminal to justice, should the ICC agree to let all of them skate?

And though it is inequitable for Israel (and not only Israel) to be investigated while worse regimes get off scot free, in a larger sense an ICC investigation of this country’s actions against the Palestinians is an instance of long, long overdue justice, of levelling the playing field to some degree. Why? Because while Israel is by no means the world’s worst malefactor, it is definitely the world’s most lavishly indulged one.

Netanyahu complains that the ICC doesn’t investigate Syria and Iran – but would he like the world to treat Israel like it treats those countries? Israel gets $3.8 billion a year and boundless political protection from the world’s No. 1 power, including laws against Boycott, Divestment and Sanctions (BDS); it has free trade agreements with Europe, and its borders are respected. Iran and Syria are pariah states, economically cut off by the world, and they get bombed every now and then by or with the full support of the world’s No. 1 power.

The U.S. imposes sanctions on 24 countries, the EU on 31 – and not just on African and Asian dictatorships, but on Belarus, Bosnia and Herzgovina, Moldova, Montenegro, Nicaragua, Russia, Serbia, Venezuela. The closest thing to a Western “sanction” on Israel is the EU requirement that it label exports made in the settlements, which isn’t enforced anyway.

Russia lost hundreds of billions of dollars due to Western sanctions since it annexed Crimea, which used to belong to Russia and was a popular move, at least at first, with masses of Crimeans. Israel imposed a colonial military dictatorship on Palestine in 1967, which it has steadily expanded in the West Bank while “scaling back” to a siege on Gaza, it has destroyed any realistic Palestinian hope for freedom and independence – and the pro-Israel perks from the West just keep coming.

Is it fair that the International Criminal Court is investigating Israel for war crimes? In the narrow legal sense, yes. In the larger moral sense, it’s more than fair.

Larry Derfner is an op-ed contributor to Haaretz and the author of the book “No Country for Jewish Liberals” (Just World Books, April 2017)