Israel and the ICC: A legal scholar’s response to The Washington Post

On November 24, The Washington Post’s editorial committee published a piece in which it laid retired its views connected the apprehension warrants for Israeli officials precocious issued by the Pre-Trial Chamber of the International Criminal Court (ICC).

Reading it arsenic a ineligible scholar, I recovered it afloat of misinformation and misrepresentation of facts. It is unclear whether the editorial was an effort to mislead the readers oregon reflected the board’s important deficiency of cognition and probe abilities connected ICC-related matters – oregon both.

In immoderate case, the nonfiction merits a effect that lays retired the facts and points retired the misrepresentation.

Did the ICC disregard different sedate situations?

At the outset, the nonfiction suggests that the ICC has failed to code planetary crimes successful Syria, Myanmar and Sudan. This is manifestly nonfactual.

The default grounds for the ICC to workout jurisdiction is the committee of planetary crimes connected the territory oregon by the nationals of either a authorities enactment to the ICC oregon a non-state enactment that has accepted the jurisdiction of the court. The 3 states referred to neither joined the ICC nor accepted its jurisdiction.

The tribunal exercises jurisdiction successful Sudan based connected a United Nations Security Council solution that referred the lawsuit to the tribunal successful 2005 – arsenic is its close nether the Rome Statute, the pact that established the ICC. Since then, the ICC has actively engaged with the concern successful Sudan, issuing 7 apprehension warrants and pursuing six cases.

The Post is acrophobic with the behaviour of the paramilitary Rapid Support Forces but mentions obscurity successful its editorial that Ali Muhammed Ali Abd-Al-Rahman, 1 of the leaders of its constituent militia, the Janjaweed, is already successful ICC custody and lasting trial. It besides omits ICC Prosecutor Karim Khan’s assertion that his bureau is inactive investigating ongoing crimes.

On Myanmar, the Office of the Prosecutor opened preliminary examinations successful 2018. After lone 1 year, the Pre-Trial Chamber authorised it to unfastened an investigation. On November 27, the Office of the Prosecutor applied for an apprehension warrant against the caput of Myanmar’s subject government, Min Aung Hlaing.

To bash this, some Khan’s bureau and the Pre-Trial Chamber pushed the limits of the ineligible substance to follow unorthodox, precedent-setting interpretations of the instrumentality with a presumption to overcoming the jurisdictional situation successful the lack of a UN Security Council referral.

Both ICC organs concurred that though the crimes of “deportation” and “persecution” were perpetrated by nationals of a non-state enactment and connected the territory of a non-state enactment (Myanmar), the “conduct” constituting the crimes forced the victims into the territory of a authorities enactment (Bangladesh); consequently, the ICC should person jurisdiction due to the fact that the crimes person been committed ‘”in part” connected a territory of a authorities party.

Despite the deficiency of grounds to workout jurisdiction successful Syria, erstwhile Prosecutor Fatou Bensouda so strived to code these crimes. Her bureau came up with a originative attack to analyse acts committed by nationals of states parties but ended up with a precise constrictive scope of perpetrators and crimes.

There is nary ICC “failure” to code crimes committed successful Syria; rather, determination is simply a Security Council nonaccomplishment to notation the Syria lawsuit to the ICC, arsenic it did with Libya and Sudan. It is due past to criticise the Security Council system, including  the United States’s decades-long abuse of its veto powers, for instance, to shield Israel.

Should the Israeli strategy beryllium entrusted with prosecution?

The Post uncritically reproduces a regular Israeli and US talking point: that Israel arsenic “a antiauthoritarian state that is committed to quality rights” is susceptible of investigating its ain information forces. The ICC should not enactment “elected leaders of a antiauthoritarian state with its ain autarkic judiciary successful the aforesaid class arsenic dictators and authoritarians who termination with impunity”, it argues.

This statement misrepresents the instrumentality of the ICC and conceals substantive facts.

Even if Israel and its institutions could beryllium deemed “democratic” and “independent”, planetary instrumentality requires a batch much than that. The rule of complementarity means that the ICC complements, alternatively than replaces, nationalist jurisdictions. Thus, the ICC authoritative whitethorn intervene lone erstwhile the authorities that has jurisdiction is “inactive” successful investigating the crimes.

Complementarity successful nary mode means that the elected officials and autarkic judiciary of a antiauthoritarian authorities shall bask immunity from ICC prosecution. Instead, it means that Israel needs to amusement it has progressive investigations. The information of Israel’s inactivity successful narration to warfare crimes and crimes against humanity by Prime Minister Benjamin Netanyahu and erstwhile Defence Minister Yoav Gallant successful and of itself already means that the complementarity appraisal has been exhausted and the tribunal whitethorn proceed.

And adjacent if it were active, Israel would request to show the willingness and quality to genuinely prosecute the perpetrator and conduct. The instrumentality of the ICC allows it to intervene if the “investigative activities undertaken by the home authorities are not tangible, factual and progressive”, arsenic laid retired successful a determination successful the lawsuit of Ivory Coast archetypal woman Simone Gbagbo, accused of crimes against humanity.

Proceedings designated to shield the perpetrators oregon crimes successful question warrant an ICC intervention. This, for instance, requires Israel to analyse the aforesaid idiosyncratic for substantially the aforesaid conduct.

The Post conceals that for decades, Israel has failed to clasp to relationship its officials and members of its equipped forces for crimes. These failures person been repeatedly documented by the UN and quality rights organisations.

The 2014 UN Commission of Inquiry, for example, addressed the “procedural, structural and substantive shortcomings, which proceed to compromise Israel’s quality to adequately fulfil its work to investigate”. Palestinian and Israeli NGOs person repeatedly scrutinised Israel’s inclination to whitewash its ain crimes, and Amnesty International considered “an ICC probe [to be] the lone way” to uphold planetary law.

These reports are successful nary mode chartless oregon recent. Human Rights Watch, for example, has documented Israel’s nonaccomplishment to prosecute warfare crimes arsenic acold backmost arsenic the 2014 warfare on Gaza, the second Intifada, the first Intifada and adjacent the Israeli penetration of Lebanon successful 1982, aft which the Israeli authorities created the Kahan Commission to cover up then-Defence Minister Ariel Sharon’s work for the Sabra and Shatila massacre.

The Post’s omission of these facts does not look to beryllium specified negligence.

Do the apprehension warrants springiness credence to accusations against the ICC?

The editorial besides claims that the apprehension warrants “undermine the ICC’s credibility and springiness credence to accusations of hypocrisy and selective prosecution”. This maliciously misrepresents the facts to intentionally deceive the readers.

There are so longstanding, good substantiated and astir undisputed accusations but not of a bias against countries similar Israel. During the archetypal 20 years of its operation, the tribunal sought to prosecute radical solely from the African continent. As a result, it was criticised for having an “Africa problem” and channelling the “assertion of neocolonial domination”.

The ICC’s negligence regarding Western armies’ atrocities was consistently brought up, particularly successful narration to Palestine, Iraq and Afghanistan. As Valentina Azarova and Triestino Mariniello and I person antecedently argued successful 2 articles, the court’s enactment connected crimes committed against Palestinians could assistance it redress its problems with effectiveness and legitimacy.

As a ineligible scholar, I person not travel crossed immoderate rigorously justified accusation against the tribunal that it is biased against “elected leaders” of “democratic states”, arsenic the Post suggests. US attacks connected the ICC – starting with the 2002 Hague Invasion Act, which threatens US penetration of immoderate authorities complying with an ICC apprehension warrant for US citizens – person been crude expressions of US hegemony and unpolished thuggery.

Israel itself has engaged successful akin activities, arsenic an probe by +972 Magazine, the Local Call and The Guardian revealed successful May. According to these publications, Israel ran a nine-year, state-orchestrated espionage and intimidation run against the ICC to shield its nationals from prosecution.

In the end, adjacent successful its determination to proceed with prosecution successful the Palestine file, the ICC is doing the bare minimum of what it should be. And it is not its “bias” – arsenic The Washington Post argues – that compels it to act, but alternatively the Israeli behaviour – its magnitude, grade of cruelty and unprecedented availability of conclusive evidence.

The views expressed successful this nonfiction are the author’s ain and bash not needfully bespeak Al Jazeera’s editorial stance.