Pounding the Table, Israeli Officials Malign International Criminal Court
Sunday, 29 November 2015 00:00 By James Marc Leas, Truthout | News Analysis
Palestinian children explore the ruins of the Imam Shafi'i Mosque in Gaza
City, August 2, 2014. (Photo: Sergey Ponomarev / The New York Times)
This is the first installment in a five-part series, "Israel Attacks the
International Criminal Court, but Its Arguments Fall Flat."
Within hours of Fatou Bensouda, the prosecutor of the International Criminal
Court (ICC), announcing that she was initiating a "preliminary examination"
into the situation in Palestine, Israeli officials launched an aggressive
campaign to undermine the court and the Palestinian Authority (PA). News
media reported the following elements of this forceful effort by the Israeli
government:
. A "public diplomacy campaign to discredit the legitimacy of the
ICC's decision to start an inquiry into what the Palestinians call Israeli
'war crimes' in the disputed territories," as reported by the "Jewish and
Israeli news" service, JNS.org. The "media campaign directed against the
International Criminal Court in The Hague and its Prosecutor Fatou
Bensouda," was decided by Prime Minister Benjamin Netanyahu, as reported by
the Israeli daily newspaper, Haaretz.
. A threat to thwart court process by not allowing Israeli soldiers to
face the tribunal, as reported on the Israeli government website.
. A threat to disregard the decision of the court: "Israel will not
have its hands tied by anyone, including the ICC," Netanyahu said, adding
that Israeli forces will continue "doing what is necessary to defend the
State of Israel and its citizens."
. A threat to use influence with other countries to interfere with the
funding of the court, as reported by the Jerusalem Post.
. An attack on the integrity of the ICC prosecutor for making a
decision that Israeli Foreign Minister Avigdor Lieberman said was "solely
motivated by political anti-Israel considerations," as reported by Yahoo
News.
. An attack on the legitimacy of the court itself by the Israeli
foreign minister as "a body that represents hypocrisy and gives terror a
tailwind." A threat from the Israeli foreign minister that he would seek to
"dismantle this court."
. The freezing of transfer of more than $100 million a month in taxes
Israel collects for the Palestinian Authority, in retaliation for the State
of Palestine joining the ICC and requesting the ICC inquiry in the first
place, as reported by the Jerusalem Post.
The ICC prosecutor, Fatou Bensouda, initiated the inquiry on January 16,
2015, in response to the Palestinian Authority 's depositing instruments of
accession to the on January 2, 2015, and its declaration the day before that
it was accepting the jurisdiction of the court over alleged crimes committed
"in the occupied Palestinian territory, including East Jerusalem, since June
13, 2014." In her statement, Bensouda said that upon receipt of such a
declaration, "and as a matter of policy and practice," she opens a
preliminary examination:
A preliminary examination is not an investigation but a process of examining
the information available in order to reach a fully informed determination
on whether there is a reasonable basis to proceed with an investigation
pursuant to the criteria established by the Rome Statute.
Bensouda said that the preliminary examination would "consider issues of
jurisdiction, admissibility, and the interests of justice." In analyzing
whether those criteria are satisfied, she said her office gives "due
consideration to all submissions and views conveyed to the Office during the
course of a preliminary examination, strictly guided by the requirements of
the Rome Statute in the independent and impartial exercise of its mandate."
The Rome Statute is the founding treaty that establishes the rules under
which the ICC operates.
Netanyahu Gave Three Reasons for Attacking ICC
The Israeli government campaign was explained by Israeli Prime Minister
Netanyahu in a statement he read out from his office on January 17, 2015.
Netanyahu argued that (1) Palestine is not a state; (2) the Israeli legal
system upholds the highest standards of international law; and (3) Israel
was acting in self-defense against terrorism.
Each of Netanyahu's three reasons appeals to one of the three provisions of
the Rome Statute the prosecutor said were under review in the preliminary
examination. If true, any one of Netanyahu's reasons could bring the ICC
proceedings to a halt.
(1) If the prosecutor finds that Palestine is not a state, the ICC would not
investigate or prosecute for lack of territorial jurisdiction.
(2) If she agrees that the Israeli legal system is independent and
impartial, and that its proceedings are in accordance with due process and
consistent with a genuine intent to bring the person concerned to justice,
cases would not be admissible, and the ICC would halt its work and defer
cases to the Israeli legal system for investigation and prosecution.
(3) If the prosecutor agrees with Netanyahu's point about self-defense
against terrorism, she might halt the case under the Rome Statute provision
that there are "substantial reasons to believe that an investigation would
not serve the interest of justice." Alternatively, as the prosecutor
confirmed in her decision in the Mavi Marmara flotilla case, "self-defense
is recognized as a ground for excluding criminal responsibility" under the
Rome Statute. So even if the prosecutor does not close the case "in the
interest of justice," Israeli officials could avoid prosecution if the court
itself accepts the validity of Israel's self-defense claim.
Distinct Departure From the Traditional Method
The Israeli government's attacks on the integrity of the court and its
prosecutor, and the punitive action it undertook against the court and
against the Palestinian Authority, demonstrated a distinct departure from
the traditional method of respectfully presenting evidence and persuasive
arguments. One possible explanation is that the ICC prosecutor was indeed
wildly deficient in accepting Palestine's request to open the preliminary
examination. Another possible explanation is that Israeli officials
recognized that factual or legal support for each of their three arguments
was lacking.
The Facts and the Law
The next several installments of this report for Truthout will show that
neither the facts nor the law squared with any of Netanyahu's three
arguments. Israeli officials appear to have taken the well-known legal
aphorism to the extreme: If you have the facts on your side, pound the
facts. If you have the law on your side, pound the law. If you don't have
the facts or the law, pound the table.
By preemptively pounding the court and its prosecutor, Israeli officials may
be implicitly acknowledging their own recognition that they do not have a
good case. As the next installments of this article will show, they may be
right that their best hope was to delegitimize the court and do their best
to stamp it out of existence.
Coming next: The second installment in this five-part series will address
the question of whether Palestine can be considered a state for ICC
purposes, which would allow the ICC to have jurisdiction over Israelis for
war crimes, crimes against humanity and genocide they are alleged to have
committed in Palestine since June 13, 2014. When Palestine requested ICC
review in 2009, the ICC prosecutor refused to take up the case, saying that
the ICC lacked jurisdiction because Palestine was not a state. Stay tuned to
learn what changed since 2009, why the ICC prosecutor is now saying
Palestine is indeed a state, and how "lack of jurisdiction" no longer
precludes Israelis from facing investigation and prosecution at The Hague.
Copyright, Truthout. May not be reprinted without permission.
JAMES MARC LEAS
James Marc Leas is a patent attorney and a past co-chair of the National
Lawyers Guild Palestine Subcommittee. He collected evidence in Gaza
immediately after Operation Pillar of Defense in November 2012 as part of a
20 member delegation from the US and Europe and authored or co-authored
several articles describing findings including "Where's the Accountability
for Israeli War Crimes?," with Audrey Bomse, "Shattered Lives in Gaza: How
the IDF Targeted Civilians," with Eva Lewis,"Wrecking Gaza: Civilian
Infrastructure Targeted by Israeli Military," with Theresa McDermott, and
"Hold Israel accountable for aggression and war crimes in Gaza." He also
participated in the February 2009 National Lawyers Guild delegation to Gaza
immediately after Operation Cast Lead and contributed to its report,
"Onslaught: Israel's Attack on Gaza and the Rule of Law."
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Pounding the Table, Israeli Officials Malign International Criminal Court
Sunday, 29 November 2015 00:00 By James Marc Leas, Truthout | News Analysis
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reference not valid.
. Palestinian children explore the ruins of the Imam Shafi'i Mosque
in Gaza City, August 2, 2014. (Photo: Sergey Ponomarev / The New York Times)
. This is the first installment in a five-part series, "Israel Attacks
the International Criminal Court, but Its Arguments Fall Flat."
Within hours of Fatou Bensouda, the prosecutor of the International Criminal
Court (ICC), announcing that she was initiating a "preliminary examination"
into the situation in Palestine, Israeli officials launched an aggressive
campaign to undermine the court and the Palestinian Authority (PA). News
media reported the following elements of this forceful effort by the Israeli
government:
. A "public diplomacy campaign to discredit the legitimacy of the
ICC's decision to start an inquiry into what the Palestinians call Israeli
'war crimes' in the disputed territories," as reported by the "Jewish and
Israeli news" service, JNS.org. The "media campaign directed against the
International Criminal Court in The Hague and its Prosecutor Fatou
Bensouda," was decided by Prime Minister Benjamin Netanyahu, as reported by
the Israeli daily newspaper, Haaretz.
. A threat to thwart court process by not allowing Israeli soldiers to
face the tribunal, as reported on the Israeli government website.
. A threat to disregard the decision of the court: "Israel will not
have its hands tied by anyone, including the ICC," Netanyahu said, adding
that Israeli forces will continue "doing what is necessary to defend the
State of Israel and its citizens."
. A threat to use influence with other countries to interfere with the
funding of the court, as reported by the Jerusalem Post.
. An attack on the integrity of the ICC prosecutor for making a
decision that Israeli Foreign Minister Avigdor Lieberman said was "solely
motivated by political anti-Israel considerations," as reported by Yahoo
News.
. An attack on the legitimacy of the court itself by the Israeli
foreign minister as "a body that represents hypocrisy and gives terror a
tailwind." A threat from the Israeli foreign minister that he would seek to
"dismantle this court."
. The freezing of transfer of more than $100 million a month in taxes
Israel collects for the Palestinian Authority, in retaliation for the State
of Palestine joining the ICC and requesting the ICC inquiry in the first
place, as reported by the Jerusalem Post.
The ICC prosecutor, Fatou Bensouda, initiated the inquiry on January 16,
2015, in response to the Palestinian Authority 's depositing instruments of
accession to the on January 2, 2015, and its declaration the day before that
it was accepting the jurisdiction of the court over alleged crimes committed
"in the occupied Palestinian territory, including East Jerusalem, since June
13, 2014." In her statement, Bensouda said that upon receipt of such a
declaration, "and as a matter of policy and practice," she opens a
preliminary examination:
A preliminary examination is not an investigation but a process of examining
the information available in order to reach a fully informed determination
on whether there is a reasonable basis to proceed with an investigation
pursuant to the criteria established by the Rome Statute.
Bensouda said that the preliminary examination would "consider issues of
jurisdiction, admissibility, and the interests of justice." In analyzing
whether those criteria are satisfied, she said her office gives "due
consideration to all submissions and views conveyed to the Office during the
course of a preliminary examination, strictly guided by the requirements of
the Rome Statute in the independent and impartial exercise of its mandate."
The Rome Statute is the founding treaty that establishes the rules under
which the ICC operates.
Netanyahu Gave Three Reasons for Attacking ICC
The Israeli government campaign was explained by Israeli Prime Minister
Netanyahu in a statement he read out from his office on January 17, 2015.
Netanyahu argued that (1) Palestine is not a state; (2) the Israeli legal
system upholds the highest standards of international law; and (3) Israel
was acting in self-defense against terrorism.
Each of Netanyahu's three reasons appeals to one of the three provisions of
the Rome Statute the prosecutor said were under review in the preliminary
examination. If true, any one of Netanyahu's reasons could bring the ICC
proceedings to a halt.
(1) If the prosecutor finds that Palestine is not a state, the ICC would not
investigate or prosecute for lack of territorial jurisdiction.
(2) If she agrees that the Israeli legal system is independent and
impartial, and that its proceedings are in accordance with due process and
consistent with a genuine intent to bring the person concerned to justice,
cases would not be admissible, and the ICC would halt its work and defer
cases to the Israeli legal system for investigation and prosecution.
(3) If the prosecutor agrees with Netanyahu's point about self-defense
against terrorism, she might halt the case under the Rome Statute provision
that there are "substantial reasons to believe that an investigation would
not serve the interest of justice." Alternatively, as the prosecutor
confirmed in her decision in the Mavi Marmara flotilla case, "self-defense
is recognized as a ground for excluding criminal responsibility" under the
Rome Statute. So even if the prosecutor does not close the case "in the
interest of justice," Israeli officials could avoid prosecution if the court
itself accepts the validity of Israel's self-defense claim.
Distinct Departure From the Traditional Method
The Israeli government's attacks on the integrity of the court and its
prosecutor, and the punitive action it undertook against the court and
against the Palestinian Authority, demonstrated a distinct departure from
the traditional method of respectfully presenting evidence and persuasive
arguments. One possible explanation is that the ICC prosecutor was indeed
wildly deficient in accepting Palestine's request to open the preliminary
examination. Another possible explanation is that Israeli officials
recognized that factual or legal support for each of their three arguments
was lacking.
The Facts and the Law
The next several installments of this report for Truthout will show that
neither the facts nor the law squared with any of Netanyahu's three
arguments. Israeli officials appear to have taken the well-known legal
aphorism to the extreme: If you have the facts on your side, pound the
facts. If you have the law on your side, pound the law. If you don't have
the facts or the law, pound the table.
By preemptively pounding the court and its prosecutor, Israeli officials may
be implicitly acknowledging their own recognition that they do not have a
good case. As the next installments of this article will show, they may be
right that their best hope was to delegitimize the court and do their best
to stamp it out of existence.
Coming next: The second installment in this five-part series will address
the question of whether Palestine can be considered a state for ICC
purposes, which would allow the ICC to have jurisdiction over Israelis for
war crimes, crimes against humanity and genocide they are alleged to have
committed in Palestine since June 13, 2014. When Palestine requested ICC
review in 2009, the ICC prosecutor refused to take up the case, saying that
the ICC lacked jurisdiction because Palestine was not a state. Stay tuned to
learn what changed since 2009, why the ICC prosecutor is now saying
Palestine is indeed a state, and how "lack of jurisdiction" no longer
precludes Israelis from facing investigation and prosecution at The Hague.
Copyright, Truthout. May not be reprinted without permission.
James Marc Leas
James Marc Leas is a patent attorney and a past co-chair of the National
Lawyers Guild Palestine Subcommittee. He collected evidence in Gaza
immediately after Operation Pillar of Defense in November 2012 as part of a
20 member delegation from the US and Europe and authored or co-authored
several articles describing findings including "Where's the Accountability
for Israeli War Crimes?," with Audrey Bomse, "Shattered Lives in Gaza: How
the IDF Targeted Civilians," with Eva Lewis,"Wrecking Gaza: Civilian
Infrastructure Targeted by Israeli Military," with Theresa McDermott, and
"Hold Israel accountable for aggression and war crimes in Gaza." He also
participated in the February 2009 National Lawyers Guild delegation to Gaza
immediately after Operation Cast Lead and contributed to its report,
"Onslaught: Israel's Attack on Gaza and the Rule of Law."
Related Stories
Palestine at the International Criminal Court: Potential and Problems - An
Analysis
By Lawrence Davidson, Truthout | News AnalysisIsraeli Report Finds Gaza War
"Lawful" and "Legitimate" Ahead of Critical UN Investigation
By Amy Goodman, Democracy Now! | Video InterviewIsraeli Settlers Demand
Demolition of Palestinian Village
By Charlotte Silver, Electronic Intifada | Report
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