Michael Sfard is an Israeli human rights lawyer
“Being an active consistent supporter of the concept of an International Criminal Court … the Government of the State of Israel is proud to thus express its acknowledgment of the importance, and indeed indispensability, of an effective court for the enforcement of the rule of law and the prevention of impunity [for war criminals].
“As one of the originators of the concept of an International Criminal Court, Israel, through its prominent lawyers and statesmen, has, since the early 1950s, actively participated in all stages of the formation of such a court. Its representatives, carrying in both heart and mind collective, and sometimes personal, memories of the Holocaust – the greatest and most heinous crime to have been committed in the history of mankind – enthusiastically, with a sense of acute sincerity and seriousness, contributed to all stages of the preparation of the Statute.”
Few people are aware of it, but on the final day of 2000, Israel signed the Rome Statute that established the International Criminal Court. The above quote is from Israel’s statement when it signed the statute. Like the United States, which also became a signatory that day (that’s why we signed), Israel later announced that it wouldn’t ratify the treaty and so wouldn’t become a party to it.
It took the Interrnational community 50 years to establish a permanent tribunal to try anyone suspected of war crimes, crimes against humanity, crimes of aggression and the so-called crime of crimes – genocide. From 1948, when the idea of such a court was first raised in a UN General Assembly resolution, to 1998, when the Rome Statute was adopted, Israel aspired to take a leading role among countries pressing to establish the court. With the pathos of those speaking on behalf of the ultimate victims, Israeli delegates ostensibly represented the conscience and morality that only victims of discrimination and persecution of pogroms and extermination like us could and were entitled to represent.
That was then, but it’s no longer the case. In recent years, Israel has crossed the lines and heavily armed itself for an unconventional battle against the organization whose establishment it once supported. Following Wednesday’s decision by the ICC’s prosecutor, Fatou Bensouda, to launch investigations into war-crime suspicions in the occupied Palestinian territory, the Israeli government in the coming months will be carrying out its battle plan for an ambitious goal – the elimination of humanity’s first permanent international criminal court.
To understand the danger the ICC faces, one needs to appreciate the tough spot the Palestine case has driven it to. The court began operating in 2002 and has more than 120 member states, mostly from the developing world (or what used to be called the Third World). Since three of the major powers – the United States, China and Russia – aren’t members and actually are hostile to it, the court’s political power and financial backing come from Western European countries, all of which are members and view the establishment of the court as an implementation of a key lesson of World War II. The idea is to bolster the most basic prohibitions adopted by humankind as a lesson from the history of wars, particularly the horrors of World War II, and ensure that perpetrators of such crimes don’t escape justice.
Since the court was established, charges have been brought relating to nine countries – all of them in Africa. The office of the prosecutor has investigated 13 disputes – 10 of them in Africa and the rest in Afghanistan, Georgia and Myanmar.
Those figures explain the harshest criticism of the court in recent years: That though it is a universal court and is supposed to investigate and try criminals from around the world, in practice it has become a court for African crimes, and that it has gone after the politically weak. The stringent critics claim that because Western countries also commit crimes but don’t face trial, the ICC is actually another imperialist-colonialist arm of the West, that once again the white race is “educating” people of color.
This criticism has exposed the court to real danger; many African countries have threatened to withdraw their membership. South Africa, a country with a history that makes it a moral symbol, has decided to withdraw from the ICC, a decision that for now has been suspended, but the country’s membership is by no means a sure thing.
Therefore, Bensouda’s decision to launch investigations into suspicions of crimes committed in the context of the Israeli-Palestinian conflict raises the stakes. On the one hand, such investigations (and potential prosecutions) would buttress the critics’ argument that the court is afraid of confrontation with Western countries and prefers to focus on criminals from politically, militarily and economically weak ones.
For an Israeli audience, it may be difficult to hear this, but Israel is known around the world as a serial perpetrator of crimes: the establishment of settlements in the territories, disproportionate attacks on the Gaza Strip every few years in which thousands of people are killed, and the patently apartheid regime it has created. A different decision would risk a wave of countries that might leave the ICC, endangering its very existence. On the other hand, the launching of investigations against Israelis leads the court straight into an abyss. Israel is one of the politically strongest countries in the world and is not ashamed to declare war on international law. And it doesn’t take prisoners.
It’s clear that in the coming days, Israel will apply unprecedented pressure on West European countries to get them to mount pressure on the prosecutor, maybe even threaten with withdrawals. Will a country like Germany, with all the historical sensitivities, withstand such pressure? Is it politically capable of surrendering to the ICC Jewish Israelis against whom arrest warrants have been issued? You can’t be a member of the court and not carry out warrants issued by the court’s judges. Withdrawal from the court by Western countries would spell its end.
It’s hard to see how this morass will be resolved. What’s certain is that now and in the near future, for the first time in their history, the Palestinians are holding a card that’s a great deterrent against Israel.
Take the case of Khan al-Ahmar, the West Bank Bedouin village that has long been slated for forced transfer by Israel. If Israel wants Germany, France, Britain and others to assist on the ICC issue, the minimum they would demand is that – at the moment at least – Israel not commit more war crimes. The evacuation of Khan al-Ahmar therefore appears more distant than ever. Sometimes, just sometimes, the law really is the tool of the weak.
At this very moment the Israeli government is activating its war rooms at the Prime Minister’s Office, the Foreign Ministry and probably the Mossad. I am ready to give them a free advice. Borrowing on a remark attributed to the late lawyer Amnon Goldenberg, who in response to a client’s question on what he should say in his testimony, said that sometimes the truth is also an option, I would suggest that sometimes not committing war crimes is also an option.