In
Israel's Attempt to Deflect ICC Prosecutor,
It Admitted to the Occupation
By
Noa Landau
December 21, 2019 "Information
Clearing House"
- In a contemporary take on the historic
declaration "Um-Shmum" – a Hebrew expression
of disdain for the United Nations attributed
to David Ben-Gurion – Israel has been
cooking up a follow-up that could be dubbed
"Hague-Shmague." Hague-Shmague posits that
the institution of international law are no
more than a redundant nuisance, biased and
even anti-Semitic, and should have no clout
over the lives of Israelis.
This derogatory
thesis has been adopted by the State of
Israel since its inception, even though it
was international institutions that led to
its founding. Such was the sentiment when
Ben-Gurion suggested that Israel conquer the
Gaza Strip and coined his dismissive idiom,
and such is the sentiment today when
Israelis hear that the prosecutor at the
International Criminal Court at The Hague
believes "there is reasonable basis" to open
an
investigation into war crimes
in the Gaza Strip, West Bank and East
Jerusalem. Oh well, many Israelis say,
"Hague-Shmague." And what else would you
expect from a world in which the
institutions of international law have been
defanged and the president of the United
States himself flouts it almost as much as
he tweets?
Only the peculiar panic that suddenly
gripped Israeli officials this Friday hinted
at the fact that something unprecedented and
salient did in fact happen.
In a hurried,
last-minute briefing to the press, likely
designed to preempt the ICC prosecutor's
statement, the Deputy Attorney General for
International Affairs and the Foreign
Ministry's legal adviser laid down the
attorney general's famous doctrine: The
Hague has no authority
to deliberate over the Israeli-Palestinian
issue. It is not a plea of innocence, but an
assertion that "they have no power here."
Intriguing. But some arguments were even
more intriguing, chief among them the claim
that "The Palestinians, by appealing to the
court, seek to breach the established
framework between the two parties and push
the court to decide on political questions
which should be settled in negotiations and
not in criminal-judicial proceedings."
Or
as the Foreign Ministry's legal adviser told
reporters: "This is the criminalization of
the conflict which could only lead to more
polarization between the parties, instead of
a diplomatic process which brings them
together."
Of which
imaginary diplomatic process do Israel's
legal defenders speak? Where exactly is it
taking place? It is Israel's long
opposition to a diplomatic process
(no less than the Palestinians') that led to
the ICC to begin with. Left with few other
options, international institutions are the
only recourse Palestinians have to further
their struggle for a state.
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The
rest of the attorney general's opinion and
briefings that followed were no less
contradictory. On the one hand, Israel
claims it is "committed to the idea of
international criminal justice since its
inception," but in reality it has never
joined the ICC's Rome Statute – arguing that
the court may one day be "used" for
"illegitimate political profit." As if there
was ever an issue of human injustice that
wasn't political at its core.
These were followed by the usual claims that
Palestine isn't a sovereign state and
therefore cannot join the statute or grant
the ICC its criminal jurisdiction. Here,
Israel also sought to point out the
contradiction in the Palestinian narrative:
It was explained that "There is either the
occupation and no state – or there is a
state and no occupation."
In other words,
the Palestinians can’t simultaneously claim
to be occupied by Israel and at the same
time be a partner in a treaty of sovereign
states. Yet doesn’t Israel pull the same
trick by demanding that Palestinians take
responsibility without allowing them full
control? Has Israel itself decided whether
Palestine is an
occupied territory
or a state? Or is it that by claiming
Palestine is not a sovereign, Israel is
admitting that it is, in fact, occupied?
Either way, Israel has ignored two central
points in its response and in the political
messages that followed (making it evident
that whoever drafted them did not read the
decision itself.) First, the prosecutor said
that the investigation she wishes to launch
also includes suspected war crimes by Hamas
and other armed Palestinian factions,
including suspected assault on civilians,
use of human shields and torture. Second,
the prosecutor has not launched the
investigation yet and left it to the court
to discuss the principle of one of the
central questions in Israel’s own claims:
Seeing that borders are not agreed upon by
the two sides, on which exact "territory"
may the ICC exercise its jurisdiction when
it comes to the West Bank, East Jerusalem
and Gaza? These points were absent from
Israel’s automatic response that ridiculed
The Hague, accusing it of “politicization”
and “delegitimization.”
By
passing the decision on the borders of
jurisdiction to the judges, the prosecutor
passed on the hot potato, but also dragged
Israel into the legal debate it sought.
Well, be careful what you wish for.
In
its legal response, Israel declared that
“the lack of jurisdiction on the part of
international tribunals in respect of any
particular disputes does not relieve States
of their duty to fulfil their international
legal obligations." Furthermore, Israel said
it is “willing and able to address any
Palestinian grievance” through, among other
means, “multi-layered review mechanisms
already in place, and by direct bilateral
negotiations.” It will be difficult to
convince the prosecutor of such non-existent
negotiations and independent monitoring
systems.
The
summary of Israel’s position ends with the
declaration that “cynical attempts to
manipulate the ICC into acting where its
jurisdiction is manifestly lacking threaten
to undermine not only the Court’s legitimacy
and credibility, but also the prospects for
achieving the just and lasting settlement
long awaited by Israelis and Palestinians
alike.” All one can say is that the
expression “cynical attempts” is entirely
apt. Perhaps it is time for Israel to first
decide for itself – before trying to
convince The Hague - whether it strives for
annexation or negotiated concessions, and
whether Palestinians are independent or
occupied.
This article was originally published by
"Haaretz"
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