Analysis from Israel

Any legal case has two main components – the facts and the law. In my last post, I analyzed the International Criminal Court’s disregard of salient facts in its ruling on Thursday overturning the chief prosecutor’s decision not to investigate Israel’s botched raid on a 2010 flotilla to Gaza. But the ruling was equally contemptuous of several fundamental legal principles.

The first of these is that judicial decisions should be dictated by law, not politics. The majority judges threw this principle out the window when they asserted that whether the alleged crime was sufficiently grave to merit ICC attention should depend not on what actually happened, but on the amount of “attention and concern that these events attracted” from the international community, as reflected in “several fact-finding efforts on behalf of States and the United Nations.” In other words, the ICC’s choice of cases will depend not on their objective legal merits, but on how many resolutions the dictators who dominate the U.N. Human Rights Council decide to devote to it.

As legal scholar Eugene Kontorovich aptly noted, the ICC is thereby “saying ‘drop dead’ to victims U.N. not interested in,” which is a travesty in and of itself: It means the court will spend its scarce resources investigating 10 people killed while attacking soldiers intercepting a blockade-busting flotilla, but ignore – to cite just one example – the tens of thousands of Syrian civilians killed by their own government’s barrel bombs.

No less appalling, however, is that this is a standard of justice used only in the most benighted regimes: Prosecutions will be based on neither facts nor law, but solely on whether they serve the interests of the politicians in power.

The second fundamental legal principle the decision guts is that the same person shouldn’t be prosecutor, judge and jury. Since a prosecutor is obviously invested in his own case, he cannot be an impartial judge.

But the ICC judges, sitting as a “pre-trial chamber,” decided to actively force the prosecutor to pursue an investigation she considered unjustified (technically, they only ordered her to “reconsider” her decision, but in practice, that order leaves her little choice). Thus the court is no longer an impartial arbiter between prosecution and defense; it is now actively invested in the success of the case.

This blurring of boundaries is justifiable only in extraordinary circumstances. That is why, as Judge Peter Kovacs noted in his dissent, “the Pre-Trial Chamber’s role is merely to make sure that the Prosecutor has not abused her discretion” – or at least, it ought to be. Instead, the majority decided to leave her no discretion at all.

Finally, the court ignored the law itself. As Kovacs also noted in his dissent, customary international law explicitly allows countries to enforce a lawful blockade, including by force if necessary. The blockade of Gaza is legal according to one of the very U.N. fact-finding committees the majority cited in its decision. And force was necessary in this case, since the ship refused repeated orders to halt and then attacked the Israeli boarding party with “fists, knives, chains, wooden clubs, iron rods, and slingshots with metal and glass projectiles.” Thus the casualties “were apparently incidental to lawful action taken in conjunction with protection of the blockade,” and as such, it’s likely that “most if not all of those acts will not qualify as war crimes.”

Yet the majority judges’ opinion doesn’t even mention the laws of blockade much less discuss their application to this case. Evidently, they consider customary international law irrelevant to their decisions.

In my earlier post, I compared the majority ruling to something out of Alice in Wonderland. And in fact, the three elements cited above are precisely the elements that make the Queen of Hearts’ courtroom so arbitrary: The law is irrelevant; judgment depends solely on the whim of the rulers; and the same person is prosecutor, judge and jury.

But the Queen of Hearts is actually preferable, because at least she’s honest about the arbitrary nature of her decisions: “Sentence first – verdict afterwards.” The ICC maintains an expensive taxpayer-funded legal bureaucracy in an effort to disguise it.

Originally published in Commentary on July 20, 2015

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One year later, the US embassy move has produced lasting gains

The first anniversary of the U.S. embassy’s move to Jerusalem sparked multiple articles in the Israeli press declaring it a failure for both U.S. President Donald Trump and Israeli Prime Minister Benjamin Netanyahu. From the left-wing Haaretz to the centrist Times of Israel, headlines trumpeted the fact that only one minor country, Guatemala, has followed America’s lead. And even that might prove fleeting, as several candidates in next month’s Guatemalan election have pledged to return the embassy to Tel Aviv.

All this is true, but it also misses the point. And it thereby obscures the real and lasting gains of the embassy move.

To understand why, it’s worth recalling America’s own history on this issue. In 1995, Congress passed the Jerusalem Embassy Act, which ordered the embassy relocated from Tel Aviv to Jerusalem. It was approved by overwhelming bipartisan majorities in both the House (374-37) and the Senate (93-5). And in every subsequent election, every presidential candidate, whether Republican or Democratic, pledged to honor this directive.

Yet despite this consensus, it still took more than 20 years for the move to happen. Successive presidents, both Republican and Democratic, proved reluctant to defy international opposition. Consequently, they exercised a provision of the law allowing the move to be postponed due to national security considerations. These presidential waivers were renewed every six months for more than two decades.

In contrast, recognizing Jerusalem as Israel’s capital was never been mooted as a possibility by any other country in the world. Outside America, not a single mainstream party, whether liberal or conservative, ever considered an embassy move, much less actively supported the idea.

Expecting other countries to go from having never even thought about moving their embassies to actually doing so in the space of just 12 months was always fatuous. Indeed, I warned a year ago that “Jerusalem isn’t going to be flooded with new embassies anytime soon.” If it took America more than two decades to move its embassy despite a bipartisan consensus that was codified in legislation, it will clearly take time for countries that have only just started considering the issue to reach the point of being ready to actually make the move.

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