Dr.Gerstenfeld’s newest article on the ICC was originally published in Besa, and republished here with the author’s consent.
How Israel should fend off the International Criminal Court
In 1998 the treaty of world leaders – known as the Rome Statute — to establish the International Criminal Court (ICC) was adopted.1 Due to the many atrocities in the world, the creation of an independent international court to judge unpunished war criminals seemed to have justification. The court was meant to judge and convict those responsible for war crimes. In 2002 the ICC, located in the Hague, Netherlands, started its activities.
In March 2014, Forbes published that in the 12 years of the court’s operations it had only obtained two convictions. Both of these were Congolese warlords. The second criminal was acquitted of the most serious charges. At that point the ICC had already accumulated expenditures of 1 billion dollars.2
In common language one cannot call such a body a “court.” A more exact description would be: “A research facility for trained lawyers, which seldom convicts a war criminal.”
By 2014 it was already evident that – in view of its poor performance — the ICC was a resounding failure. It wasted large amounts of public money under the false pretenses of convicting a significant number of unpunished war criminals.
In 2018, The Washington Post wrote that the ICC had completed nine cases in its entire history. Two of these had resulted in convictions and one in a guilty plea. There were also 11 situations under investigation.3 Hundreds of millions of additional dollars had been spent since 2014.
For 2020, the ICC is requesting a budget of over 160 million dollars. It employs 900 staff members among which 18 are judges.4 If the ratios of ICC expenditure and the number of lawyers related to convictions and investigations were typical for courts hardly any justice could be meted out in the world.
Besides being an extremely inefficient body, the ICC has other major failures. All people investigated so far were from African countries. Yet since the court was established hundreds of thousands of people in many locations elsewhere around the world have been murdered or driven out of their countries as a result of war crimes.
Furthermore, in order to be credible, an international court should employ prosecutors and judges from democratic states. The ICC’s current president is Chile Eboe-Osuji from Nigeria. Freedom House does not rank Nigeria as a democratic country. It considers it only partly free. Freedom House writes that political corruption remains endemic in the country. Militants and security officials consistently violate the human rights of Nigerians. Civil liberties in Nigeria are also undermined by religious and ethnic bias.5
The ICC Chief Prosecutor, Fatou Bensouda, originates from Gambia. Freedom House states that the rule of law is unconsolidated in that country. Freedom House does not rate it as a democracy. Bensouda was Minister of Justice and Attorney General of Gambia from 1998-2000 under President Yahya Jammeh, who took power by a coup. He is considered a cruel dictator who has also stolen major monies from the country.6
Nor is the ICC independent. Amb (ret.) Alan Baker, a former legal advisor of the Israeli Ministry of Foreign Affairs and currently at the Jerusalem Center for Public Affairs writes: “Placing part of the ICC’s financing at the political mercy of the UN General Assembly undermines and prejudices any pretention of independence of the Court. Funding of the ICC, like any other action requiring approval in the UN General Assembly, is, of necessity, a process driven by the political and economic interests of its members and subject to political bargaining that is unconnected to the needs of the Court.” He goes on to say, “Despite the best intentions of its founders, the very independence and impartiality of the Court was flawed from the outset by constitutionally linking the Court with the United Nations.”7
When requested by the ICC Prosecutor to investigate the American military and intelligence professionals who served in Afghanistan, the ICC Court announced its unanimous rejection. The White House made a damning statement about the ICC: “The United States has consistently declined to join the court because of its broad, unaccountable prosecutorial powers; the threat it poses to American national sovereignty; and other deficiencies that render it illegitimate. Any attempt to target American, Israeli, or allied personnel for prosecution will be met with a swift and vigorous response.”8 Earlier the US announced that no visa would be issued to ICC personnel investigating their country.9
It is against the above background that Bensouda’s announcement that the ICC would be investigating Israeli and Palestinian war crimes should be assessed.10 This proposed investigation is both a legal and a political act.
Israel’s immediate reactions were also legal and political. The legal ones were professional. The Israeli Ministries of Foreign Affairs and Justice had been dealing with the possibility of an ICC anti-Israeli action for quite some time. They had also been in touch with the ICC on this issue.
Attorney-General Avichai Mandelblit reacted: “Only sovereign states can delegate criminal jurisdiction to the International Criminal Court. The Palestinian Authority clearly does not meet the criteria.” He added: “The Court was not established for such purposes, nor does it have the authority or capacity to determine such matters, especially in the absence of the consent of the parties.”11 Baker remarked: “only sovereign states may appeal to the court and there exists no sovereign Palestinian state with sovereign territory over which the court could extend its jurisdiction.” 12
On the political side, however, Israel’s reactions were erratic. The government could have prepared over many month also a strong political reaction. Israeli Prime Minister Benjamin Netanyahu called the court “antisemitic.”13 So did Defense Minister Naftali Bennett.14 This may even be true if one applies the International Holocaust Remembrance Association definition of antisemitism to the Court’s decision. Yet it was largely irrelevant. Antisemitism is not the battleground on which Israel’s future political campaign against the ICC will have to be conducted.
Choosing the Israeli-Palestinian issue over tens of others, incomparably more in need of investigation by the ICC, was a heavily biased political decision. In order to gain some relevance, the ICC had to get away from Africa on what Bensouda thought would be a winnable target. The ICC has thus defined itself as a political adversary of Israel, if not an enemy.
Israel has already been confronted with experiences with international bodies where the political by far dominated the pseudo-legal. One example was the 2004 International Court of Justice advisory opinion on the Israeli security fence. Another concerned the United Nations Human Rights Council (UNHRC) which gave the Goldstone Commission a biased mandate to investigate actions of Israel, but not of the Hamas terrorists.
From a strategist’s point of view the ICC should be confronted as an enemy. As such, Israel’s actions should focus on promoting publicly as much as possible that the deficiencies of the court by far exceed its merits.
That process of exposure will be much quicker if Israel mobilizes as many allies as possible who have come to a similar conclusion, including the United States. Such negative exposure of the ICC will be far more damaging to it and much faster than its investigation of the Israeli-Palestinian conflict.