Lawfare is Warfare

When I first heard that the International Criminal Court based in The Hague had determined that war crimes have been committed on the West Bank, in Gaza, and in East Jerusalem and was going to embark on the process of deciding whether or not to prosecute those alleged crimes, my first tendency—like most normal people, I imagine—was to wave it away as yet another example of an organization founded to prosecute wrongdoing being hijacked by Israel’s enemies as part of a long-term effort to delegitimize the Jewish state. In a nutshell, that actually is what this is all about. But the potential consequences for Israel are serious. And the situation, as it turns out, is far more complicated than I had first understood.

The court was founded in 2002 by the signatories to the so-called Rome Statute that now serves as the court’s foundational document. Neither the United States nor Israel is a signatory to the Rome Statute, however, because at the time both nations feared—apparently entirely reasonably—that the court would end up delivering highly politicized judgments unrelated to the pursuit of justice that was supposed to be the court’s raison d’être in the first place. And although the ICC is in theory independent of the United Nations, the on-the-ground reality is that the Court is so intricately related to the U.N. so as to make of its latest machinations just another part of the U.N.’s mission to ignore—and, indeed, to whitewash—the crimes of all members states except Israel so as to have the time solely to devote itself to the demonization of the Jewish state. (More on this below.) But just to wave this latest development as just another example of the moral bankruptcy of a United Nations-related agency like UNESCO or (even more egregiously) UNRWA would be a mistake. This is an important development that needs to be taken seriously.

The ICC can only try individuals, not entire countries. And so, if the pre-trial hearing that will now ensue endorses the opinion the President of the Court, Fatou Bensouda of Guinea, that the ICC does indeed have the right to pursue the matter, what will almost inevitably follow will be the issuance of subpoenas to major Israeli political and military figures ordering them to appear before the court. If they declined to appear, warrants could then be issued for their arrest. And although it is so that the Bensouda’s original decision speaks in passing about crimes committed by Hamas and the Palestinian Authority, no one appears to be taking any of that too seriously—including not Hamas or the Palestinian Authority, both of which organizations openly and effusively praised Bensouda’s decision to proceed and neither of which entities seemed to harbor even the slightest worry that it might end up having to answer for any of its own actions.

There are strong arguments against the ICC decision to move forward against Israel, some procedural and some moral.  Of them, though, surely not the least compelling is the relationship—ignored by the court but fully relevant—between the fact that Israel is not a signatory of the Rome Accord and the fact that the ICC only has the right to bring the citizens of member states to trial. But there are other strong arguments in Israel’s favor as well.

The ICC’s decision to treat the Palestinians as though Palestine were an independent country is rooted in the kind of wishful thinking that has characterized the fantasyland approach to reality of the United Nations for decades. Palestine, of course, could easily become an independent country: having already been recognized as a state—or at least a state in potentia—by well over one hundred countries, all the Palestinians have to do is to declare their independence and then get down to the task of negotiating a workable modus vivendi with the neighbors. It’s that last part, of course, that has gummed up the works for decades now: the obvious necessity of recognizing the reality of Israel’s existence and learning to live in harmony with the Jewish state has been the sticking point that has held back the Palestinians from doing what they endlessly insist is all they really want to do: to live in peace as an independent state among the nations of the world.  But that inability to accept reality and create a nation is hardly Israel’s fault: the door to Palestinian independence has been open for decades even despite the Palestinians’ unwillingness to step through it. The ICC’s solution—simply to ignore reality—is simultaneously childish and malign, and does not do the court any credit. But there is far more to say as well.

Key too is that the court exists to prosecute individuals for war crimes in places where there is no independent judiciary that can investigate and try its own citizens. But Israel is hardly that place: the independence of the Israeli judiciary and its ability to act freely has just been demonstrated in the various indictments handed down against Benyamin Netanyahu. Even more relevant, though, is that there actually have been individuals tried over the years in Israel for having behaved with excessive force or violence against Palestinians. So the notion that the ICC would need to step in even if it did have some sort of jurisdiction in the matter is not particularly convincing. And when paired with the fact that neither the Palestinian Authority nor Hamas has ever tried anyone for war crimes committed against Israeli citizens and actually foster terror crimes against civilians by lionizing terrorists who die on the job and providing endless financial support for their families—taken together, those two facts make the whole notion of trying Israel at the ICC even more Kafkaesque.

But when all of the above is considered in light of the ICC’s own history, the situation moves past Kafka.

The ICC has, to date, undertaken investigations into twelve different countries, mostly in Africa. (The countries involved are Burundi, the Central African Republic, Côte d’Ivoire, Sudan, the Democratic Republic of the Congo, Georgia, Kenya, Mali, Libya, Uganda, Myanmar, and Bangladesh.) But it has adopted a totally hands-off policy with respect to the Arab world: the government of Syria has killed hundreds of thousands of its own civilians over the last few years, destroyed countless towns and villages, and turned fully half of its own population into refugees. But the ICC has shown no interest of any sort in that behavior. Indeed, among the nations of the Middle East, only Israel arouses its ire…and merely for defending itself against entities that openly espouse terror as their weapon of choice in a war they could end tomorrow but prefer to pursue perennially as though violence directed at civilians could somehow result in the achievement of their avowed goals.

Finally, the argument—which I’ve noted in a dozen different on-line settings—that the ICC is independent of the United Nations is simply not true. For one thing, the ICC depends fully on the United Nations for all of its funding. For another, the ICC regularly bases itself on the kind of one-sided, wholly biased reporting of U.N. agencies that no reasonable person would consider even remotely accurate.

The world has mostly nodded. Yes, the P.M. of Australia, who has more on his plate this week to worry about than the ICC, took the time to opine in public that the ICC has no jurisdiction in the matter of Israel’s behavior. The German government said much the same thing, as did our own Secretary of State, Mike Pompeo.  So there’s that to be grateful for. But the larger issue—the public demonization of Israel in the larger forum of nations and the general willingness of the nations of the world not to care or even particularly to notice—is beyond distressing.

Finally, and perhaps most important of all, the issue itself of war crimes committed during the Gaza Uprising of 2014 is itself a bogus charge invented by Israel’s enemies without any serious evidence to muster on its own behalf.  A year later, in 2015, the independent High-Level Military Group—a group led by General Klaus Naumann, the former chief of staff of the German Army and the Chairman of the NATO military committee and staffed by generals, high-level military experts, senior officers, and chiefs of staff from seven NATO nations—came to the following conclusion regarding Israel’s actions in Gaza: “Each of our own armies is of course committed to protecting civilian life during combat. But none of us is aware of any army that takes such extensive measures as did the IDF last summer to protect the lives of the civilian population in such circumstances…During Operation Protective Edge, in the air, on the ground and at sea, Israel not only met a reasonable international standard of observance of the laws of armed conflict, but in many cases significantly exceeded that standard.”

As the specter of anti-Semitism rises at home and abroad, we tend to focus on the thugs and brutes that attack Jews at worship in synagogue or at home. That rising tide has to be addressed, obviously, and somehow confronted. But to allow our distress over that kind of activity at home to divert our gaze from institutions like the ICC merely because they present themselves not as ruffians or hoodlums but as jurists concerned solely with the pursuit of justice—that would be a disastrous error of judgment. In the end, I still hope that reasonableness will prevail, but I feel less sanguine with each successive article I read, both in print and online, about the inner workings of the International Criminal Court. Our government has already spoken out forcefully on the side of decency and rationality. I mentioned above the responses of Germany and Australia. Which of our other so-called friends and allies will join us in calling out the ICC, on the other hand, remains to be seen.