Josh Hammer: The ICC has some nerve to target Israel
Bensouda’s prosecution is utterly lawless. As a political matter, the West must push back against this encroachment on the sovereignty of a democratic nation-state.Did ICC prosecutors engage with Hamas when drafting case against Israel?
For starters, the ICC is structurally biased against Israel. As international-law expert Eugene Kontorovich noted when the Palestinian Authority sought formal ICC membership in 2015, the Rome Statute, which created the ICC, included language at the behest of the Arab states specifically designed to demonize Israeli “settlement” activity in the West Bank.
That should have given away the ICC game. But even under the ICC’s own terms, Bensouda’s attempted prosecution doesn’t pass muster. It lacks jurisdiction.
Under the Rome Statute, the ICC can go ahead with a prosecution in a country only if the state has delegated jurisdiction to the international court. But which state could delegate jurisdiction to the ICC in the case of the Palestinian territories? Certainly not the fictional “State of Palestine,” which even the United Nations doesn’t formally recognize as a state.
Plus, if Israel is a nefarious “occupier” of Palestine, as Palestinian propaganda constantly claims, then it means that the “State of Palestine” isn’t sovereign over its own claimed territory and therefore can’t delegate jurisdiction to the ICC.
An ICC prosecution, moreover, would flout the Oslo Accords, which call for direct negotiations between the parties to reach a final political settlement and under which Israel retains full civil and military control over the majority of the West Bank territory.
A still more glaring problem: Israel is a democratic state with civilian control of the military and an independent, rigorous judiciary that can adjudicate war-crimes allegations. This isn’t some war-torn, broken state or one transitioning out of recent dictatorship — like, er, Gambia. Israel doesn’t need ICC supervision to prosecute war crimes by its own soldiers.
But Bensouda cares not for legal niceties. She has previously opined that Gaza, from which Israel unilaterally withdrew in 2005, remains occupied, because the “international community” says so. The fact that she has gone ahead with this prosecution means she already buys the anti-Israel narrative wholesale: that “Palestine” is a sovereign state; that all of the West Bank belongs to that Palestinian state; and that Jews living in their biblical heartland are war criminals.
Prosecutors from the International Criminal Court did not deny that they engaged with representatives of the terrorist groups Hamas and the Popular Front for the Liberation of Palestine (PFLP) when preparing their case to investigate Israel for alleged war crimes.
When asked whether it heard arguments from Hamas, the ICC told The Jerusalem Post it engages with all kinds of groups within Israeli and Palestinian society. However, it added, its official focal point is with the Palestinian Authority, not Hamas.
Still, the PA’s official committee, appointed by President Mahmoud Abbas to handle matters related to the ICC, which definitely engaged with the court, includes representatives of Hamas and PFLP, among them individuals with known ties to terrorism.
PLO Secretary-General Saeb Erekat, head of the ICC committee, said on official Palestinian TV earlier this month – the day after the probe of Israel and the Palestinians was announced – that Hamas had been involved.
“This committee includes all the bodies of the Palestinian political spectrum without exception… We worked together as a team,” he stated in a video translated by the Middle East Media Research Institute (MEMRI). “Dr. Ghazi Hammad, for example, was elected as the committee’s spokesman… He is one of Hamas’s leaders. There were six Hamas members in the committee. Khalida Jarrar – may she be released [from prison] soon – represented the PFLP. I don’t want to go into the names, but I will just say that no [faction] was left out.”