The International Criminal Court’s Recent Moves against Israel Expose Its Bias

May 6, 2020 | Richard Kemp
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While Fatou Bensouda, the chief prosecutor of the International Criminal Court (ICC), was initially reluctant to launch proceedings against the Jewish state, she has since given in to pressure from the judges themselves and laid the legal groundwork for a formal investigation. This week, Bensouda responded to objections—raised by Germany, Australia, Uganda, and other countries—that the court has no jurisdiction in the Israeli-Palestinian conflict. Richard Kemp explains:

The court’s founding Rome Statute allows investigations only within the sovereign territories of state parties to the treaty. But the prosecutor has unlawfully accepted delegated jurisdiction over the West Bank, east Jerusalem, and Gaza from what she calls the “State of Palestine.” Palestine is not a state and never has been. . . . Israel, [moreover], is not a state party to the court.

Beyond this narrow legal problem, important though it might be, lies a much broader one:

The ICC was not established to replace national judicial systems but to complement them—to act only where states themselves lack the capability or will to conduct their own investigations and prosecutions. Israel has a long-established and internationally respected legal system, with a record of investigating and bringing charges against those accused of war crimes, which renders the court’s process inadmissible.

As some of us foresaw from the start, the ICC has twisted itself into a political court rather than a serious legal body. Its notorious obsession with Israel is only part of the problem. Following accusations that the court was biased against African states, which led South Africa, Burundi, and Gambia to threaten withdrawal, the ICC has tried to deflect criticism by focusing on Western liberal democracies, alleging large-scale war crimes in Afghanistan and Iraq by the U.S. and UK.

This makes the ICC an instrument of “lawfare,” intended to weaponize legal processes to deter or hamper law-abiding Western liberal democracies from fighting to defend themselves, and to undermine their core values.

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