Photo Credit: UN Photo
Headquarters of the International Criminal Court at The Hague

{Reposted from the JCPA website}

It is both tragic and ironic that the State of Israel, one of the founding fathers of the vision of creating an independent International Criminal Court after the unimaginable atrocities committed against the Jewish People during the Holocaust, has now become the target of that very International Criminal Court.

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As one of the leading countries actively involved, from the start, in the negotiation and drafting of the founding document-the Statute of the ICC, it is all the more ironic that Israel now finds itself being accused by the Court based on Palestinian political manipulation.

What was intended to be an independent juridical body devoted to preventing impunity enjoyed by the most serious and atrocious war criminals, by bringing them to justice, is now being politically manipulated against the one state that since the early 1950s has consistently advocated the establishment of such a body, the State of Israel.

The irony is all the more evident given the legal acrobatics by the politically oriented and politically influenced prosecutor of the Court and the majority of judges of the Pre-Trial Chamber, in their obstinate and flawed insistence on attributing elements of statehood and sovereignty to a Palestinian entity that is distinctly, legally, politically, and by all international standards, not a state.

Since such an entity is not a state, then it cannot claim to have any sovereign territory, and thus, even according to the Statute of the ICC, which is open to states only, it cannot be the subject of the Court’s jurisdiction. Thus the Palestinians have absolutely no standing in the court.

This ironic situation is not surprising given the prevailing international atmosphere of incitement and hostility towards Israel throughout the UN system.

However, what is shocking is the fact that the one international juridical institution that was hoped and intended by its founders, and stated in its founding document, to be “an independent, permanent International Criminal Court…with jurisdiction over the most serious crimes of concern to the international community as a whole“, has allowed itself to be politically manipulated and abused.

What was intended to be an a-political juridical body, devoid of political pressure and influence, has now permitted itself to become one more “Israel-bashing body” at the disposal of those elements in the international community seeking to undermine Israel’s legitimacy. In fact, the Palestinian leadership has succeeded in manipulating the Court by turning it into their own, private, back-yard tribunal.

In so doing, the Court is permitting itself to become irreparably prejudiced. Any juridical integrity, credibility, and bona fides that it might have had are being irreparably harmed.

This decision by the Court’s Pre-Trial Chamber to accept the contention of the prosecutor, based purely on non-binding, non-legal, and un-authoritative political resolutions of the UN General Assembly, defies all legal logic. The fact that the Court is seeking to exercise jurisdiction over disputed territory that is in the midst of an internationally recognized dispute-settlement process, runs squarely against logical international dispute settlement practice.

This is all the more illogical given the fact that the State of Israel is not a party to the Rome Statute.

Since the ICC Statute is open to sovereign states only, and since no sovereign Palestinian state exists, and since there exists no Palestinian territory over which the Court could exercise its jurisdiction, the Pretrial Chamber, by any legal logic, should have rejected the contentions of the prosecutor.

In light of the fact that the territories subject of the Palestinian referrals to the Court, are under an agreed and internationally accepted dispute-settlement and negotiation process, the Pretrial Chamber of the ICC, by any legal logic, should have rejected the contentions of the prosecutor, rather than attempt to prejudge and undermine the outcome of the negotiating process by determining that there exists sovereign Palestinian territory.

This was the opinion submitted to the Pre-trial Chamber by seven states parties to the ICC Statute, as well as hundreds of independent international lawyers and non-governmental organizations. Regrettably, the majority of the members of the Pre-trial Chamber chose to ignore this opinion.

Sadly, and regrettably, this decision not only irreparably harms the integrity and credibility of the ICC, but it also has the potential to undermine and derail the Middle East peace negotiating process, since the Court, at the behest of its prosecutor, is attempting to prejudge the outcome of that process, contrary to all historic and legal logic.

The hijacking, abuse, and manipulation of the ICC is the antithesis of the vision of its founding fathers, the states, and the international legal experts that devoted so much time, effort, and enthusiasm to establishing a genuinely objective juridical body.

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Amb. Alan Baker is Director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.