The ICC is Nothing but a House of Cards (Vic Rosenthal)

Vic Rosenthal's weekly column

There is no world government based on international law, and there should not be one. That seems like something that should be understood and agreed to by everyone, but apparently it is not.

Today, Israelis, from the Prime Minister to almost any IDF soldier, are in legal jeopardy as a result of the overreach of arrogant international institutions and an overly-expansive idea of international law.

In its simplest form, international law is based on the (supposedly) universal acceptance of the principle that a nation should honor its agreements with other nations. If, for example, Iran signs the nuclear non-proliferation treaty and then develops nuclear weapons, it is in violation of international law. When a country joins the UN, it agrees to be bound by the UN Charter (which, for example, forbids the “threat or use of force against the territorial integrity or political independence of any state”), and by certain kinds of Security Council resolutions. In these contexts, international law depends on consent: a nation is not bound to follow any laws that it hasn’t agreed to.

There is also something called “customary international law.” That refers to principles that are not covered by treaties, but are unwritten rules based on the customary behavior of states and a subjective opinion of obligation. One area in which it is applicable is where non-state actors are concerned, who are not members of the UN and have not signed any treaties. So Hamas’ use of human shields can be considered a violation of customary international law even though Hamas is not a member of the UN and has not signed any of the protocols of the Geneva Conventions. Here there is no consent. But even when customary international law is applied to states the question of consent can become murky, since there are no agreed-to treaties to refer to.

The difference between the laws of states and international law is most pronounced when you consider interpretation and enforcement. States establish domestic courts that interpret their laws and determine when someone is in violation of them. They have jurisdiction over all the residents of a country and their decisions are binding. A state can use force to enforce them. For international law, jurisdiction is limited by the principle of consent and enforcement is more complicated.

There are international courts. The UN has established an International Court of Justice (ICJ), which can adjudicate disputes between nations in the framework of international law. In order for the ICJ to do so, either the nations involved must explicitly consent, or they must have signed treaties that include clauses that require such adjudication of disputes. The ICJ can also give advisory opinions to various UN agencies when asked to do so. Such opinions are not binding on the nations involved. For example, in 2004, the ICJ produced a highly politicized advisory opinion for the UN General Assembly, holding that Israel’s security barrier violated international law and construction of it should stop. Israel cooperated with the court by providing testimony, but was not required to do so or to accept its judgment.

There is also an International Criminal Court (ICC). The ICC is not a part of the UN; it was established in 2002 by a multilateral treaty called the Rome Statute and is financed by contributions from its member states. The ICC can try individuals (not states) who are accused of serious crimes like genocide, crimes against humanity, or war crimes. The ICCs jurisdiction is limited to crimes committed within the territorial area of states that have adopted the Rome Statute or declared their acceptance of its jurisdiction; or crimes committed by nationals of those states; or in special cases referred by the UN Security Council. 123 states have signed on to it and 42 (including the US and Israel) have not.

Note that the criterion for jurisdiction seriously undermines the principle of consent. The court can prosecute a citizen of a particular country whether or not that country is a member of the Rome Statute, as long as the offense was committed in a country that is a member.

The ICC can prosecute someone only if it decides that “national justice systems do not carry out proceedings or when they claim to do so but in reality are unwilling or unable to carry out such proceedings genuinely.” It can prosecute anyone, even if they are a head of state or a soldier who is required to follow orders. So far it has indicted 44 people, mostly for crimes committed in several African conflicts.

The ICC can issue arrest warrants which may be executed by member states, or any state that cooperates with it. Arrested persons can be tried at the Court’s headquarters in The Hague, Netherlands. If convicted, they can be sentenced to prison terms up to and including life imprisonment, which can be served in cooperating countries.

As you probably know, the ICC’s head prosecutor has announced that the Court would initiate a criminal investigation against Israelis and (presumably) Hamas members for war crimes committed during 2014’s Operation Protective Edge and the defense of the Gaza border, as well as Israel’s settlement policy. The prosecutor claims that the Court has jurisdiction over Gaza and Judea/Samaria, even though “Palestine” is not a sovereign state and Israel is not a party to the Rome Statute.

A pre-trial panel of judges decided that “The State of Palestine” had joined the Rome Statute in 2015, and that therefore – although the Court didn’t wish to decide the question of whether “Palestine” is a state – the very fact that it had joined the statute implies that it can be treated as a “state party” to the Statute. Once a “state party,” it would be unfair to deny it any of the rights and privileges accruing to one! (See pars. 89-113 of the decision linked above). Sometimes an argument is so bad, it’s hard to even restate it.

But since “Palestine” isn’t actually a state with borders, how do we know that the “crimes” were committed within its borders? Easy, say the ICC judges: UN General Assembly Resolution 67/19, which admitted “Palestine” to the UN as a “Non-member Observer State” in 2012 says that “Palestine” includes the Gaza Strip and the “West Bank.” QED.

Regarding the UNGA, I don’t think I have to add anything to Abba Eban’s well-known comment, “If Algeria introduced a resolution declaring that the earth was flat and that Israel had flattened it, it would pass by a vote of 164 to 13 with 26 abstentions.”

The Kafkaesque ICC decision, 60 pages of mumbo-jumbo intended to obscure the intention to pillory Israel and punish Israelis, proves that the ICC is “nothing but a pack of cards,” in the words of Lewis Carroll’s Alice.

And this illustrates how, at least in the realm of nations, politics trumps law. It illustrates why the expansion of international law beyond the principle of consent is dangerous. And – as if any more such illustrations are needed – it shows how important international institutions are viciously biased against one particular country, which just happens to be the one Jewish state.