The International Criminal Court (ICC) remains a dangerous and biased battleground for Israel. Shurat HaDin is on the front lines of this fight:
This past December, Fatou Bensouda, the Chief Prosecutor of the ICC, announced that she intends to pursue a criminal investigation of alleged ‘war crimes’ in ‘The State of Palestine’. The Prosecutor announced she will be investigating the IDF conduct in both the 2014 Gaza Operation Protective Edge and during the Gaza border rioting, the so-called “Marches of Return.” Additionally, Bensouda said the ICC would also be investigating the Israeli ‘settlements’. The fact that Israel is not a member of the ICC played little importance to her.
Before going forward with her investigation, however, the Prosecutor asked the Pre-Trial Chamber of the ICC, to rule that ‘Palestine’ is indeed a ‘State’, with its territory including the West Bank, the Gaza Strip, and Jerusalem. This would mean that ICC judges sitting in The Hague would determine if Jewish communities in the West Bank were legal and whether Jerusalem itself belonged to the Palestinians!
Shurat HaDin petitioned for and received permission to submit legal arguments as “Friends of the Court.”
Shurat HaDin’s Action
Reading the ICC prosecutor’s request, we were struck – not only by the flawed legal arguments it presents – but also by unbalanced factual description of the conflict and the complete disregard from the immense historical, religious and cultural significance of these areas for the Jewish people. We understood, that the prosecutor simply endorsed the Palestinian narrative, in full, ignoring any Israeli suffering. A blunt illustration for this, is the fact that in the 110 pages manifest accusing Israel, the word “terror” appears only once, in an irrelevant footnote.
We also understood, that although many renown experts will argue, together with us, as to the erroneous legal analysis of the Prosecutor, we stand little chance, if the judges are provided only with a one-sided, distorted pro-Palestinian factual description.
Therefore, we decided to bring before the court the stories of the individuals and communities who may be affected by a court’s ruling on the ‘State of Palestine’. We approached original residents of the Old Jewish Quarter in Jerusalem and Kibbutz Kfar Etzion – Jewish communities which were brutally torn out from their homes in 1948, returning to them only after Israel resumed control over these areas – and asked them to join our petition . We hope that the information regarding the brutal Massacre of the 130 residents and defenders of Kfar Etzion, whose bodies remained unburied for more than a year, proceeded by the looting of the village and its leveling to the ground, or the brutal attack – followed by the destruction of the Jerusalem’s Jewish Quarter, taking in captivity all males and the deportation of the women and children – may serve as ‘wakeup call’ for the Court, to understand how deeply prejudiced is the Prosecutors’ request, to act in caution and restraint and to base any ruling on well-established principles of international law, according to which ‘Palestine’ cannot be recognized as a ‘state’.
In our observation, we wrote, that it is critical that the ICC be fully aware of all relevant considerations, and their potential repercussions, before it makes its ruling. We argued, that the Prosecutor essentially requests that the Chamber will adjudicate issues that are at the heart of the longstanding dispute between Israel and the Palestinians, and which deeply touch upon the collective aspirations and narratives of each side. We contend that these political issues are nonjusticiable for the Court and concluded, that the ICC is fundamentally ill-suited for such a purpose, and should, therefore, refuse the Prosecutor’s request to determine that it has territorial jurisdiction in this case.
About 40 applications had been submitted to the ICC in request for leave to file observations. The Palestinian side is supported by the Arab League States, anti-Israel human rights organizations and “International Law scholars,” including Prof. William Schabas who has worked on behalf of the terrorist PLO.
On the Israeli side, we stand proudly with renown academics scholars from around the world, a remarkable coalition of Jewish Organizations, the Israeli Bar Association and six state which support Israel. We are now awaiting the ruling of the Court on our petition and already working on our next moves.
We will keep you informed,