Evelyn Gordon: ICC Takes Anti-Israel Bias to New Heights
On November 15, the pretrial chamber of judges ordered the court’s prosecutor—for the second time—to reconsider her refusal to investigate Israel’s 2010 raid on a flotilla to Gaza. Demanding one reconsideration is rare. Demanding two is unheard of. No such option even exists in the ICC’s rulebook.CNN commentator calls for elimination of Israel, endorses violent Palestinian ‘resistance’
Prosecutor Fatou Bensouda appealed this ruling last week. But regardless of what the Appeals Chamber decides, it’s already too late to salvage the pretense that the court is an unbiased judicial institution and not a cesspool of anti-Israel prejudice.
To understand why, a review of the case is in order. In May 2010, a flotilla tried to break Israel’s legal blockade of Gaza. Israel intercepted most of the ships peacefully. But on one, according to the same UN inquiry that upheld the blockade’s legality, passengers attacked the soldiers with “fists, knives, chains, wooden clubs, iron rods, and slingshots,” seriously wounding nine. To protect themselves, the soldiers opened fire, killing ten people.
Comoros, whose flag that ship flew, filed a complaint against Israel over the incident in May 2013. In November 2014, Bensouda dismissed it. Despite concluding (wrongly) that the soldiers used excessive force, she said the fact that they opened fire only after being attacked and the low number of deaths made the incident insufficiently grave to warrant attention from a court created to prosecute major atrocities. But in July 2015, the pretrial chamber ordered her to reconsider—the first time it had ever overturned a prosecutor’s decision.
I dissected the judges’ egregious errors of both fact and law at the time, including their failure even to mention the passengers’ attack on the soldiers, which was central to Bensouda’s decision, and their astounding argument that the gravity of the case should be determined not by what happened, but by how much international “attention and concern” it attracted. Bensouda evidently found their ruling equally unpersuasive, since she appealed it. But after losing that appeal, she duly reconsidered.
In November 2017, she announced, unsurprisingly, that her opinion remained unchanged. That should have ended the story. After all, the same appellate judges who upheld the pretrial chamber’s demand for reconsideration also unequivocally authorized her to stick with her original conclusion if she still deemed it correct. Moreover, section 108(3) of the ICC’s own rules explicitly defines the prosecutor’s decision after reconsideration as a “final decision.”
But Comoros appealed again, and astoundingly, the pretrial judges once again ordered her to reconsider, saying her initial reconsideration hadn’t satisfied their requirements. The clear implication was that they would keep demanding reconsiderations until Bensouda produced the decision they wanted.
There are several glaring problems with this. First, of course, it ignores the plain meaning of section 108(3). Instead, the majority essentially argued that a “final decision” only becomes final once they approve the outcome.
CNN commentator Marc Lamont Hill, in a Wednesday speech to the United Nations, called for violent resistance against Israel and advocated expanding Palestine “from the river to the sea,” a phrase used by those who believe that Israel should be eliminated.Marc Lamont Hill at UN calls for "Free Palestine from the River to the Sea" to chorus of applause
Hill, who has a long history of anti-Semitism, made the remarks at a U.N. event commemorating the International Day of Solidarity with the Palestinian People. He said the international community should boycott Israel and allow Palestinians more space to engage in violence against the Jewish state, arguing that violence was also employed in the struggles of African Americans.
“Contrary to western mythology, black resistance to American apartheid did not come purely through Ghandi and nonviolence," Hill said (see video below.) "Rather, slave revolts and self-defense and tactics otherwise divergent from Dr. King or Mahatma Gandhi were equally important to preserving safety and attaining freedom. If we are to operate in true solidarity with the Palestinian people, we must allow the Palestinian people the same range of opportunity and political possibility. If we are standing in solidarity with the Palestinian people, we must recognize the right of an occupied people to defend itself. We must prioritize peace, but we must not romanticize or fetishize it. We must advocate and promote nonviolence at every opportunity, but we cannot endorse a narrow politics of respectability that shames Palestinians for resisting, for refusing to do nothing in the face of state violence and ethnic cleansing."
He urged grassroots, local, and international action to "Give us what justice requires -- and that is a free Palestine from the river to the sea."
The phrase “from the river to the sea” has been a rallying cry for Hamas and other terrorist groups seeking the elimination of Israel, as a Palestinian state stretching from the Jordan River to the Mediterranean Sea would mean that Israel would be wiped off the map.
Hill’s remarks are the latest example of anti-Israel and anti-Semitic statements.






















