Judicial Reform Won’t Put Israel at the Mercies of the International Criminal Court

Some opponents of the judicial reforms proposed by the current Israeli government have asserted that their passage will expose current and former members of the IDF to prosecution by the International Criminal Court (ICC). If Israel allows its elected legislators to select judges and forbids its Supreme Court from revoking laws on a whim—the anti-reformists claim—the ICC will determine that Israel is incapable of prosecuting crimes on its own, and will therefore assert its jurisdiction. Eugene Kontorovich and Avraham Shalev are unconvinced:

The ICC has no authority over Israeli soldiers, regardless of the details of Israel’s legal system, for one simple reason: the court only has jurisdiction over countries that accept its jurisdiction by ratifying its constitutive treaty, known as the Rome Convention. . . . Israel, like its allies, the United States and India, has never joined the ICC, out of longstanding concerns about [its] systemic bias. The only way the court could exercise jurisdiction over Israeli nationals is in the case of war crimes committed in the territory of a state party, a situation that simply does not arise.

Assuming the ICC had jurisdiction, it only prosecutes where the home state is “unable or unwilling” to investigate or prosecute a crime. [This principle, known as the] complementarity doctrine, in no way relates to the method of judicial selection. Indeed, it does not refer to courts at all, but to the “unwillingness” of the “state” to prosecute, which focuses primarily on the executive branch. The proposed reforms do not involve Israel’s criminal justice system, its independence, or the ability of prosecutors to prosecute offences committed by its soldiers.

Even Israel’s present judicial system would not satisfy the ICC’s views of what complementarity requires, however. Foremost among the supposed crimes the ICC is investigating [is] the supposed crime of allowing Jews to live in Judea and Samaria. Israel’s Supreme Court, however, has never treated this as a criminal issue.

The rhetoric about the ICC in the judicial-reform debate gives the body far more respect and formidability than it deserves.

Read more at Kohelet

More about: ICC, International Law, Israeli Judicial Reform, West Bank

Israel Can’t Stake Its Fate on “Ironclad” Promises from Allies

Israeli tanks reportedly reached the center of the Gazan city of Rafah yesterday, suggesting that the campaign there is progressing swiftly. And despite repeatedly warning Jerusalem not to undertake an operation in Rafah, Washington has not indicated any displeasure, nor is it following through on its threat to withhold arms. Even after an IDF airstrike led to the deaths of Gazan civilians on Sunday night, the White House refrained from outright condemnation.

What caused this apparent American change of heart is unclear. But the temporary suspension of arms shipments, the threat of a complete embargo if Israel continued the war, and comments like the president’s assertion in February that the Israeli military response has been “over the top” all call into question the reliability of Joe Biden’s earlier promises of an “ironclad” commitment to Israel’s security. Douglas Feith and Ze’ev Jabotinsky write:

There’s a lesson here: the promises of foreign officials are never entirely trustworthy. Moreover, those officials cannot always be counted on to protect even their own country’s interests, let alone those of others.

Israelis, like Americans, often have excessive faith in the trustworthiness of promises from abroad. This applies to arms-control and peacekeeping arrangements, diplomatic accords, mutual-defense agreements, and membership in multilateral organizations. There can be value in such things—and countries do have interests in their reputations for reliability—but one should be realistic. Commitments from foreign powers are never “ironclad.”

Israel should, of course, maintain and cultivate connections with the United States and other powers. But Zionism is, in essence, about the Jewish people taking responsibility for their own fate.

Read more at JNS

More about: Israeli Security, Joseph Biden, U.S.-Israel relationship