ICC orders its prosecutor to consider 'Mavi Marmara' war crimes allegations against IDF
In a shocking 2-1 decision, the International Criminal Court on Thursday ordered its Prosecutor Fatou Bensouda to consider opening a full criminal investigation into 2010 Mavi Maramara flotilla war crimes allegations against IDF personnel only 7 months after Bensouda had closed the file.Eugene Kontorovich: Dutch Supreme Court Ruling on Israeli Criminal Jurisdiction in the West Bank
With harsh language, the ICC told Bensouda that she should have more seriously considered the possibility that those killed by the IDF in the incident were “systematic or resulted from a deliberate plan or policy to attack, kill or injure civilians.”
The decision puts the ICC the closest it has ever been to intervening directly into the Israeli-Arab conflict and places the court in the position of potentially being harsher on Israel than Bensouda, who herself has been criticized by Israel for recognizing a State of Palestine.
Deputy Foreign Minister Tzipi Hotovely responded to the decision derisively, stating, “the International Court in the Hague has turned with this decision into a tool for Palestinian propaganda.”
Foreign Ministry Spokesman Emmanuel Nachshon echoed those sentiments, saying, “Israel harshly rejects” the ICC ruling and that “Israel had acted in self-defense and in line with international law.”
Further, Nachshon recalled that a quasi-independent Israeli commission with international observers as well as a UN Secretary General-sponsored commission confirmed Israel’s self-defense claims.
So Berland would seem to have a receptive audience for his argument that Israel cannot be understood to apply to crimes committed across the Green Line.Bernard Lewis, the intellectual giant and the grasshoppers
However, the Dutch Supreme Court came to a different conclusion (adopting the opinion of the Court's Attorney General). It began by establishing the relevant presumptions. In considering an extradition request pursuant to a treaty, a court can only reject it if the requesting state's lack of jurisdiction is clear on the face of the papers. That is, if the lack of jurisdiction is manifest without further investigation.
While the Court noted the state of international opinion on the issue, it said that Israel's lack of territorial jurisdiction in East Jerusalem and Beitar was not one of these black-and-white issues that it could in effect take judicial notice of. One would imagine that if China requested extradition regarding a crime that occurred in Spain, this would be one of the "clear" case that fall outside the presumption.
To be sure, the Court made no pronouncement on Israel's borders, and indeed suggested it would be inappropriate to do so in an extradition case. It simply decided that the lack of territorial jurisdiction is not an apparent, day vs. night, judicial notice kind of fact. Even given the presumption in favor of finding territorial jurisdiction, the fact that it was not overcome under the present circumstances is quite noteworthy. To put it simply, the conclusion that the anti-jurisdiction argument does not overcome the presumption means the argument is not a 100 percent unquestioned winner.
Indeed, it suggests that the International Criminal Court may face difficulties in exercising jurisdiction over Israeli settlements. If these are within Israeli territorial jurisdiction (albeit not sovereignty), there is no basis for the Court to act. Here again, the Court would have to overcome very high presumptions to exercise jurisdiction, because Israel is a non-member state and because of the Monetary Gold principle. While extradition is presumptively valid, jurisdiction in the ICC needs to be affirmatively established, rather than disproved.
Bernard Lewis is the greatest scholar of the Middle East and the Islamic and Arab past in the world. The shallow political correctness in the New York Times, which has lauded the pygmie Edward Said in scathing opposition to Lewis's superior mind, is a sad statement of our times
It is a truth universally acknowledged, except by book reviewers in the New York Times, that Bernard Lewis is the most important and distinguished scholar on the history of the Middle East and of the Islamic and Arab past.
Therefore, it was startling that Jacob Heilbrunn in his review of the book Ally by Michael Oren (Sunday, July 12, 2015) when referring to the “legendary Middle East scholar Bernard Lewis,” under whom Oren studied at Princeton, repeated Edward Said’s scurrilous remark that Lewis was, “dripping with condescension and contempt toward the Arab world.”
In repeating this infamous comment, Jacob Heilbrunn reveals he writes more from a political perspective than from scholarly analysis. Even if Heilbrunn himself does not subscribe to this offensive statement, he has disgraced himself by quoting it.


















