The ICC declares war on Israel
July 16, 2015, 10:32 pm
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The Pre-Trial Chamber of the International Criminal Court, for the first time in its history, has ordered
the ICC Prosecutor to pursue an investigation she has decided to close.
The Chamber ruled that the Prosecutor was wrong to close the
preliminary investigation into war crimes charges against Israel for
crimes allegedly committed in boarding the Mavi Marmara and other
vessels during the flotilla incident of 2010.
The ruling of the Pre-Trial Chamber is remarkable.
It holds that the Prosecutor should have taken
into account facts and actions that are outside the jurisdiction of the
court in deciding whether to bring charges.
It holds that the Prosecutor should assume the
truth of even the wildest accusations in deciding whether to bring
charges; in other words, there should be an irrebuttable presumption of
guilt in the preliminary investigation stage.
And most shockingly, it holds that crimes have
sufficient gravity to interest the court, even if they have very few
actual victims, as long as they are widely covered by the media, and are
subject to a lot of political activity at the UN.
Needless to say, none of these holdings are
accompanied by any citation to precedent. That’s because they are
without any precedent.
And it’s a safe bet that last two of these
“rules” will never be applied to any non-Jewish, non-Israeli defendant.
That’s because the rules, if universally applied, would require the
Prosecutor to investigate thousands of non-crimes every year, making the
prosecution of real crime impossible. And it would make the Prosecutor
throw away legal standards and make her choices based on the most
political UN proceedings.
One of the Pre-Trial Chamber’s three members,
Judge Péter Kovács, addresses the issues far more persuasively in
his dissent to the ruling. First, Judge Kovács points out, it requires
serious distortion of both the facts and the law to come to the
conclusion that Israel committed any crimes at all. As Kovács noted,
“The injuries sustained by the individuals on board the Mavi Marmara
were apparently incidental to lawful action taken in conjunction with
protection of the blockade.” Kovács observes, “a ship that is
non-violent and not resisting may nonetheless be captured because of its
attempting to breach a blockade. It is clear that not only was it the
Mavi Marmara’s intention to breach the blockade, but this was its main
purpose, as an act of protest. With this in mind, Israeli forces had a
right to capture the vessel in protection of their blockade. … Faced
with a potential breach of the blockade, the IDF acted out of
necessity.”
Moreover even if Israeli actions in stopping
the flotilla were criminal, they are outside the jurisdiction of the
court, because they are of insufficient “gravity.” The “gravity” rule
states that the Court should only pursue the largest and most serious
international crimes. It is clear that if there were any Israeli crimes
here, they were not of that magnitude.
As Kovács writes, “Upon comparison, for
instance, between the number of deaths in the flotilla incident with the
number of murders and serious injuries which prompted [the] Pre-Trial
Chamber [] to authorize, by majority, the Prosecutor to open an
investigation into the situation in the Republic of Kenya, one may
observe a huge discrepancy. The violence in the Kenya situation resulted
in the death of about 1,220 and the serious injury of 3,561 persons in
six out of the eight Kenyan provinces.” Kovacs concludes that it is
doubtful that “the death of ten persons and the injury of 55 others in
the context described in the Prosecutor’s report and the Comoros
submission is sufficiently grave to warrant the opening of an
investigation into this situation.”
What does it say that Pre-Trial Chamber is so
willing to set aside its own precedent, the law and the facts in order
to order the Prosecutor to jump back into the anti-Israel investigation?
Sadly, the conclusion is clear.
The ICC, like altogether too many other
international institutions that claim to protect law and justice, is
just another political institution. And like all those other political
international institutions, it is all too ready to fabricate new and
uniquely harsh standards of “law” to apply only to the detriment of the
Jewish state, and to fabricate facts to find the leaders and Jewish
citizens of the Jewish state guilty of all manner of horrible crimes.
The PLO, calling itself “the state of
Palestine,” recently joined the ICC for the sole purpose of getting the
court to prosecute Israeli leaders. Legal observers doubted that the PLO
move could succeed. They noted that the PLO is not actually a state,
and cannot confer jurisdiction on the court. They noted, as well, that
Israel has a system for prosecuting its own criminals, so even if the
PLO move were effective, the court would lack jurisdiction, since it can
only prosecute where a state lets criminals run free. They noted that
the alleged Israeli crimes lack the gravity to be prosecuted by the
court. And they noted that jumping into the Arab-Israeli conflict would
over-politicize a court that is already criticized for selective
prosecutions.
But it seems that the court — or at least the
Pre-Trial Chamber — views politicization as an attraction, rather than a
flaw. Enough that the Chamber finds cases to have great gravity, not on
the basis of legally relevant facts, but on the basis of political
pronouncements. Enough that the Chamber wants to run forward on an
investigation that will lead to criminal charges that are laughable.
It is now clear where the PLO’s joining the
court will lead. Palestinian terrorists and war criminals will continue
to enjoy absolute impunity. The ICC will earn its reputation as another
failed hope for international law, and another embarrassing institution
devoted to persecuting the Jewish state. And Israeli Jews will once
again find themselves in a world where it is criminal simply to exist,
and where stepping foot in the wrong country means instant arrest.
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