The International Criminal Court’s Incoherent Case against Israel

Last Friday, in response to a petition filed by the Palestinian Authority, Fatou Bensouda, the chief prosecutor of the International Criminal Court (ICC), announced that she is opening an investigation against Jerusalem for alleged war crimes committed during the 2014 Gaza war and in subsequent anti-terror efforts. Twice before, Bensouda had rebuffed the court’s request that she investigate Israel for other allegations. Ben-Dror Yemini points out some of the many flaws of the current investigation:

[First], a complaint to the ICC can only be filed by a state, which Palestine is not. In addition, the Oslo Accords state that the Palestinian Authority does not possess the legal standing to file such a petition at an international court. But . . . this is an assembly of judges who have been appointed by nations hostile to Israel.

It is a fact that the majority of fatalities [in military conflicts around the world] over the last two decades have been innocent civilians. Sometimes it is done with malice, such as the Darfur genocide or the use of chemical weapons by the Syrian regime against its civilians or the Iranian-sponsored bombings and starvation in Yemen. Sometimes it is done unintentionally, such as the death and destruction in the Iraqi city of Mosul, where some 190,000 civilians perished in the battle against Islamic State.

Apart from the former president of Sudan, Omar al-Bashir, none of the people involved in these incidents was ever indicted. Bashir was never extradited, due to widespread support from various Arab and Muslim nations, nations in Africa, as well as China and Russia.

[Moreover], the data show that compared with other militaries around the world, Israel has far fewer civilian casualties during its military operations.

Read more at Ynet

More about: ICC, International Law, Palestinian Authority, Sudan, Syrian civil war


The ICJ’s Vice-President Explains What’s Wrong with Its Recent Ruling against Israel

It should be obvious to anyone with even rudimentary knowledge of the Gaza war that Israel is not committing genocide there, or anything even remotely akin to it. In response to such spurious accusations, it’s often best to focus on the mockery they make of international law itself, or on how Israel can most effectively combat them. Still, it is also worth stopping to consider the legal case on its own terms. No one has done this quite so effectively, to my knowledge, as the Ugandan jurist Julia Sebutinde, who is the vice-president of the ICJ and the only one of its judges to rule unequivocally in Israel’s favor both in this case and in the previous one where it found accusations of genocide “plausible.”

Sebutinde begins by questioning the appropriateness of the court ruling on this issue at all:

Once again, South Africa has invited the Court to micromanage the conduct of hostilities between Israel and Hamas. Such hostilities are exclusively governed by the laws of war (international humanitarian law) and international human-rights law, areas where the Court lacks jurisdiction in this case.

The Court should also avoid trying to enforce its own orders. . . . Is the Court going to reaffirm its earlier provisional measures every time a party runs to it with allegations of a breach of its provisional measures? I should think not.

Sebutinde also emphasizes the absurdity of hearing this case after Israel has taken “multiple concrete actions” to alleviate the suffering of Gazan civilians since the ICJ’s last ruling. In fact, she points out, “the evidence actually shows a gradual improvement in the humanitarian situation in Gaza since the Court’s order.” She brings much evidence in support of these points.

She concludes her dissent by highlighting the procedural irregularities of the case, including a complete failure to respect the basic rights of the accused:

I find it necessary to note my serious concerns regarding the manner in which South Africa’s request and incidental oral hearings were managed by the Court, resulting in Israel not having sufficient time to file its written observations on the request. In my view, the Court should have consented to Israel’s request to postpone the oral hearings to the following week to allow for Israel to have sufficient time to fully respond to South Africa’s request and engage counsel. Regrettably, as a result of the exceptionally abbreviated timeframe for the hearings, Israel could not be represented by its chosen counsel, who were unavailable on the dates scheduled by the Court.

It is also regrettable that Israel was required to respond to a question posed by a member of the Court over the Jewish Sabbath. The Court’s decisions in this respect bear upon the procedural equality between the parties and the good administration of justice by the Court.

Read more at International Court of Justice

More about: Gaza War 2023, ICC, International Law