Analysis from Israel

National Security Advisor John Bolton’s verbal assault on the International Criminal Court earlier this month raised a predictable outcry. But anyone who cares about justice should be cheering him on. There are many reasons for this, but here’s one: In its treatment of one country in particular, the court has already violated fundamental principles of justice and demonstrated blatant bias.

The ICC has considered or is considering several complaints against Israel. Though none has yet resulted in charges, judges from the pretrial chamber—who normally become involved only after charges are filed—have already intervened twice. In both cases, they violated standard rules of procedure in an effort to tip the scales against Israel.

The first intervention followed Israel’s botched interception of a flotilla to Gaza in 2010. A subsequent U.N. investigation concluded that Israel’s naval blockade of Gaza was legal, and Israel was justified in enforcing it. It also concluded that Israeli soldiers shot and killed 10 passengers only after passengers attacked them with “iron bars, staves, chains, and slingshots.” The soldiers “faced significant, organized and violent resistance,” the U.N. report said. “Three soldiers were captured, mistreated, and placed at risk by those passengers. Several others were wounded.” Passengers even seized some of the soldiers’ guns, and “there is some reason to believe” they used those guns to shoot two soldiers.

ICC Prosecutor Fatou Bensouda, despite asserting (wrongly) that the soldiers used excessive force, correctly deemed this incident of insufficient gravity to merit attention by a court created to deal with major atrocities, given the passengers’ violent behavior and the low number of deaths. She therefore closed the case.

But the pretrial chamber—the very chamber tasked with deciding whether there’s enough evidence to proceed should Bensouda file charges—overturned this decision in 2015, ordering her to reconsider. To her credit, she didn’t change her mind. But that doesn’t lessen the gravity of the chamber’s conduct.

First, never before had a pretrial chamber rejected a prosecutor’s decision not to prosecute, so this decision raised obvious suspicions of bias. Far worse, however, it eviscerated a crucial safeguard of every fair legal system—that the person bringing the charges shouldn’t be the one to rule on their validity. In this case, by seeking to usurp the prosecutor’s discretion, the pretrial chamber destroyed its ability to serve as an impartial judge. How could it possibly provide a fair hearing if charges were filed at its explicit behest, against the prosecutor’s best judgment?

Then, lest anyone think this was a one-time aberration, the pretrial chamber took another exceptional step against Israel in July. Without waiting for Bensouda to conclude any of her other Israel-related probes (the Palestinian Authority inundates her with complaints), the pretrial chamber ordered the court’s registry to establish “a system of public information and outreach activities for the benefit of the victims and affected communities in the situation in Palestine,” open an “informative page” on the court’s website exclusively for Palestinians, and report to the chamber on these operations every three months with the goal of creating a “continuous system of interaction between the Court and victims, residing within or outside of Palestine.”

All the probes in question are still in the preliminary stage, meaning Bensouda hasn’t even decided whether they merit a full-fledged investigation. And it’s unprecedented for the court to engage in this kind of outreach at such an early stage, for good reason—it destroys the judges’ ability to serve as impartial arbiters.

After all, Bensouda has yet to conclude that any crime even occurred, much less that the court has jurisdiction over it (which is far from self-evident). Moreover, the judges have yet to see any evidence in the cases at issue. Yet by declaring the Palestinians victims to whom the court must reach out, they have effectively announced that they’re already convinced both that crimes have occurred and that they’re within the court’s jurisdiction. And if the judges have decided all this without even bothering to review any evidence, how could they possibly be trusted to evaluate the evidence fairly should Bensouda actually file charges?

Moreover, by twice sending Bensouda clear signals that they want her to indict Israel, the judges have undermined her credibility as an independent prosecutor. If she ever does file such charges, will it be because she truly considers them justified or only because it’s easier to placate the judges above her than to keep defying them?

Thus the court’s track record on Israel alone provides ample justification for Bolton’s broadside against it. Indeed, it ought to concern many countries since a court that’s biased against one country can’t be trusted to eschew bias against others. But it should especially concern America because America’s worldwide military operations make it a far more likely target for war-crimes complaints than other Western democracies.

Moreover, there’s little Israel has done in its wars that the United States hasn’t also done, often on a larger scale—targeted killings of terrorists, demolishing civilian houses suspected of being booby-trapped, accidentally killing civilians, etc. So any ICC indictment against Israel would set a precedent for similar charges against America. Washington should therefore be very worried by the fact that ICC judges are willing to violate crucial tenets of judicial fairness to secure such an indictment.

But even if the court’s bias were confined to Israel alone, that would still be unacceptable. The most fundamental tenet of any fair legal system is that laws must apply equally to all. If even one country is subject to unfair treatment at the ICC, that’s a sign that something is deeply wrong with the court.

Indeed, I believe the court’s treatment of Israel is merely a symptom of a fundamental flaw in its model of justice, an issue I’ll discuss in a separate column. But one needn’t accept that contention to realize that its anti-Israel bias alone is sufficient to undermine the court’s pretense of serving justice. And by refusing to overlook that uncomfortable fact—by refusing to grant a travesty of justice the honor due the real thing—America is upholding its highest ideals.

This article was originally syndicated by JNS.org (www.jns.org) on September 26, 2018. © 2018 JNS.org

One Response to ICC’s anti-Israel bias shows America is right to shun it

  • Rafi Marom says:

    Dear Ms. Gordon,
    Once again, a solid piece.
    But!
    While a good chunk of the world is willing to throw Israel to the dogs of the ICC, it is will worth remembering that all the ICC can only go after those countries which are willing to accept it mandate. Israel, wisely, does not endanger its sovereignty by refusing to acknowledge the court’s authority.
    Keep in mind that a lot of other states with less than clean hands will be watching how Israel is treated and will less willing to have a case tried before this body if they feel that they are watching a remake of the “Ox-Bow Incident.” Legal lynching is still a lynching.

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The International Criminal Court’s fundamental flaw

In my last column, I noted in passing that the International Criminal Court’s blatant anti-Israel bias is merely a symptom of a more fundamental flaw. That isn’t self-evident; court supporters would doubtless argue, just as many people do about the United Nations, that while the court’s anti-Israel bias is regrettable, it’s an isolated flaw that doesn’t outweigh the benefit of ending impunity for atrocities.

What convinced me both that the ICC is unredeemable and that the impunity problem has a better solution was actually a book by one of the court’s ardent supporters—Philippe Sands, a law professor and international lawyer who has worked on ICC cases. In East West Street, Sands traces the development of two key concepts in international law—crimes against humanity and genocide—to their respective culminations in the Nuremberg Trials of 1945 and the Genocide Convention of 1948. But for me, the real eye-opener was his description of the international wrangling that preceded the Nuremberg Trials.

Nuremberg is sometimes derided as victor’s justice. And in one sense, it obviously was: Four of the victors of World War II—America, Britain, Russia and France—decided to put senior officials of their vanquished foe on trial. But what was striking about Nuremberg was the massive degree of international concord required to hold those trials. Lawyers representing several very different legal systems and several very different systems of government nevertheless had to agree on every word and even every comma in the indictments. And since those lawyers were acting on their governments’ behalf, political approval by all four governments was also needed.

In contrast, the ICC needs no international buy-in at all to pursue a case. Granted, its prosecutors and judges come from many different countries, but they represent neither their home governments nor their home legal systems. Politically, they represent nobody but themselves. Legally, they represent one particular interpretation of international law—an interpretation popular with academics and “human rights” organizations, but less so with national governments.

At first glance, both of the above may sound like pluses. Prosecutorial and judicial independence are generally good things, whereas many governments and legal systems leave much to be desired when it comes to protecting human rights.

But the ICC’s version of prosecutorial and judicial independence is very different from the version found in most democracies because the latter is not completely unconstrained. In democracies, prosecutors and judges are constrained first of all by democratically enacted legislation, and usually by democratically enacted constitutions as well. They’re also constrained by the fact that they, too, are citizens of their country, and therefore share concerns important to most of their countrymen—for instance, national self-defense—but unimportant to judges and prosecutors from other countries (which those at the ICC almost always will be).

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