By Claiming Jurisdiction over Israel, the International Criminal Court Makes a Mockery of Its Mission

February 8, 2021 | Alan Baker
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On Friday, the International Criminal Court (ICC) ruled that its jurisdiction extends over the West Bank, Gaza Strip, and eastern Jerusalem—despite the fact that Israel is not a member of the court. To provide a logical framework for the decision, the court created the legal fiction of a Palestinian state with borders corresponding to the territory seized by Egypt and Jordan during their invasion of Mandatory Palestine in 1948. This ruling makes it possible for the court’s prosecutor to continue with an investigation into her claims of a “reasonable basis to believe” that Israel committed “war crimes” while responding to murderous attacks from Gaza, and by allowing Jewish citizens to live in the West Bank. Alan Baker comments:

What was intended to be an independent juridical body devoted to preventing the impunity enjoyed by the most serious and atrocious war criminals, by bringing them to justice, is now being politically manipulated against the one state that since the early 1950s has consistently advocated the establishment of such a body, the state of Israel.

The irony is all the more evident given the legal acrobatics of the politically oriented and politically influenced prosecutor of the court, and the majority of judges of the [court’s] pretrial chamber, in their obstinate and flawed insistence on attributing elements of statehood and sovereignty to a Palestinian entity that is distinctly—legally, politically, and by all international standards—not a state.

[Because it] is not a state, then it cannot claim to have any sovereign territory, and thus, even according to the statute of the ICC, which is open to states only, it cannot be the subject of the court’s jurisdiction. Thus the Palestinians have absolutely no standing in the court. This decision by the pretrial chamber to accept the contention of the prosecutor, based purely on nonbinding, non-legal, and unauthoritative political resolutions of the UN General Assembly, defies all legal logic.

[Thus] the court is permitting itself to become irreparably prejudiced. Any juridical integrity, credibility, and bona fides that it might have had are being irreparably harmed.

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