The ICC’s Legally Suspect Upbraiding of Israel

Oct. 29 2018

Since 2010, the Israeli government has been trying to relocate the residents of the Bedouin village of Khan al-Ahmar—located in part of the West Bank left by the Oslo Accords under direct Israeli (rather than Palestinian Authority) control—because most of the houses there were built illegally. Last May, the dispute reached the Israeli Supreme Court, which ruled that the government could move ahead with the village’s demolition. Benjamin Netanyahu, however, ordered a halt to the demolition last week. Prior to this order, the prosecutor of the International Criminal Court (ICC) had issued a report criticizing Israel over the Khan al-Ahmar issue. Alan Baker notes the shoddy legal thinking behind this condemnation:

[The prosecutor, Fatou Bensouda,] pointed out that extensive destruction of property without military necessity, and population transfers in occupied territory, constitute war crimes under the Rome Statute of the ICC [and] threatened to “take appropriate action [in accordance with] . . . my mandate under the Rome Statute.” . . . . Curiously, she added that such action by her would respect the “principle of complementarity.” . . .

The “principle of complementarity” . . . is the basic, underlying requirement of the 1998 Rome Statute. . . . It determines that the exercise by the court of its jurisdiction regarding the most serious crimes of international concern “shall be complementary to national criminal jurisdiction.” This means that the ICC may not take action on a complaint referred to it if the courts at the national level are dealing, or have dealt with, the particular case. . . .

In fact, the Khan al-Ahmar situation represents a classical example of complementarity inasmuch as it addresses violations, by the residents of the village, of building, planning, and zoning requirements. The issue was duly referred to and dealt with by Israel’s courts. As is widely publicized, attempts to reach an acceptable compromise regarding an alternative site close to the village—constructed in accordance with planning and zoning requirements, with connection to the electricity and water infrastructures—are still ongoing, without any need for warnings by and intervention of the ICC prosecutor. . . .

The extensive publicity and public-relations campaigns by the Palestinian leadership—connected to their periodic and highly publicized meetings with, and complaints to, the prosecutor against any and most actions by Israel—would give the impression that the Palestinians have adopted the ICC as their own . . . Israel-bashing tribunal. . . . The fact that Prosecutor Bensouda, pursuant to the incessant Palestinian lobbying and harassment, has found it necessary [on multiple occasions] to issue criticism of and warnings to Israel, and to intercede in an ongoing situation regarding Khan al-Ahmar, would appear to reflect [badly] on her impartiality and independence and as such, on her capability to fulfill the important function of ICC prosecutor.

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More about: Bedouin, Benjamin Netanyahu, ICC, International Law, Israel & Zionism, West Bank


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