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Legitimacy of one-eyed ICC is undermined

'Israel has always been the canary in the diplomatic coal mine, and other countries are taking note'.

By Dr Bren Carlill February 11, 2021, 11:02 am Edit
The Pre-Trial Chamber of the International Criminal Court, composed of (back row from left) Presiding Judge Marc de Brichambaut, Judge Peter Kovacs and Judge Reine Alapini-Gansou. Photo: Courtesy ICC
The Pre-Trial Chamber of the International Criminal Court, composed of (back row from left) Presiding Judge Marc de Brichambaut, Judge Peter Kovacs and Judge Reine Alapini-Gansou. Photo: Courtesy ICC

HOLD your nose, because I’m going to walk you through decades of international anti-Israel animus so as to give the context of last weekend’s International Criminal Court decision.

During the Yom Kippur War, the Saudis unleashed the oil weapon. Western states and the Non-Aligned Movement fell over themselves to fall in line with the Soviet and Muslim states’ anti-Israel diktats. Fear of the oil weapon, combined with genuine solidarity for the Palestinian cause (the latter increasing in Western society, as the progressive left became progressively more obsessed with Israel), caused the UN’s annual round of anti-Israel resolutions to begin from 1974. A parade of countries recognised Palestine as a state from 1988, despite such a state never having existed.

But there are real-world consequences for these acts of cowardice and solidarity. Yes, Israel is negatively affected, but these resolutions and recognitions also set back the cause of Palestinian statehood and of Israeli–Palestinian peace. Surely no one of good conscience wants this.

Only states are allowed to join the ICC. But because Palestinians have long been the exception to sensible state behaviour, Palestine joined in 2015, on the back of the 2014 General Assembly resolution that called Palestine a state. Once in the ICC, it didn’t take long for Palestine to launch proceedings against Israel.

When Palestine wanted to accede to the ICC, its Assembly of States Parties should have said no, because Palestine isn’t a state. But in solidarity and cowardice they didn’t say anything (except, notably, Canada).

Once it was a member, Palestine asked the ICC Prosecutor to investigate Israel. She should have said no. But she said yes, and the court’s Pre-Trial Chamber (PTC) confirmed her decision last weekend.

Here’s a taste of the legal gymnastics that were required to justify the decision:

The PTC determined that Palestine is a state for jurisdictional purposes, even though “the ICC is not constitutionally competent to determine matters of statehood”. It also determined the borders of this ‘jurisdictional state’, before stating that in doing so it was not seeking to determine the extent of this state’s borders because, you know, the state has yet to be established and its future borders will be the outcome of Israeli–Palestinian peace talks.

One of the three PTC judges dissented, and his criticism of his colleagues and the ICC Prosecutor was withering. “Acrobatics with provisions of the statute cannot mask legal reality,” he wrote, meaning that pretending that Palestine is a state does not make it a state. He also called out the Palestinian campaign at the ICC as being about bypassing negotiations, which is what it is. This is the sort of sensible black-and-white legal deliberations one would expect from a court of such standing.

But now that the court has taken this path, what does it all mean?

First, it means that the ICC has allowed itself to become politicised, like the UN General Assembly and Human Rights Council. In the case of a court, this matters; a court’s legitimacy rests completely on the impression that it is objective and impartial. Ever notice the statues holding swords and scales outside courts? They’re always blindfolded, to depict impartiality.

The ICC is no longer blindfolded; it is one-eyed and its legitimacy is undermined.

Second, the ICC dismissed out of hand the binding Israeli–Palestinian peace agreements, in favour of non-binding UN General Assembly resolutions. By doing so, it has overreached legally, and weakened peace agreements the world over. If a party to a binding agreement can so easily breach its obligations (and be rewarded for it), what makes any peace agreement sacrosanct?

Third, the decision will further harden Palestinian attitudes. If Palestinians can win without negotiating or compromising, why bother doing either? Remember, the Palestinians walked away from negotiations with Israel in 2014 precisely because negotiations entail compromise.

But if Palestinians ever want a viable state, they’re going to have to negotiate a mutual compromise with Israel. Unfortunately, the Palestinian leadership has always been much more focused on tearing Israel down than building Palestine up. The international community is responsible for allowing this attitude to manifest, by rewarding Palestinian recalcitrance, and so has the responsibility to begin disabusing Palestinian society of the notion that it will achieve statehood by bypassing Israel.

This will only happen if the international community stops pandering to Palestinian sensibilities in the UN and elsewhere. The timid willingness to go along with whatever the anti-Israel bloc wants has to stop in the name of peace. Sadly, it likely won’t.

Here it’s appropriate to commend Australia’s role. When the ICC Prosecutor claimed she had jurisdiction, the Morrison Government submitted its legal opinion that argued the opposite. On Saturday, Foreign Minister Marise Payne expressed her “deep concern” about the ICC determination, making the obvious point that “matters relating to territory and borders can only be resolved through direct negotiations between Israel and the Palestinians”.

This dignified response is not only representative of the government’s pragmatic position on Israeli–Palestinian affairs, but the only path to Israeli–Palestinian peace.

Despite it all, the court’s overreach and politicisation could produce something positive. Some countries have woken up to the danger of a politicised international court.

We might dismiss the bias of the UN, but this bias has now translated into a real possibility that the ICC will issue arrest warrants for Israelis. Israel has always been the canary in the diplomatic coal mine, and other countries are taking note. Already, the US and UK have been targets of ICC investigations, while despots are ignored. Seven countries, including Australia, told the ICC it had no jurisdiction in this case, only to have their concerns dismissed.

The ICC is dependent on funds provided by member states, and if the member states see the court’s politicisation as a serious threat, they will starve it of funds.

This is a sliver of a silver lining, I’ll admit. And the gathering storm clouds are worrying. The court’s decision is terrible news for Israel. But, even if they won’t admit it, it’s also terrible news for Palestinians and anyone who wants Israeli–Palestinian peace.

Dr Bren Carlill is the Zionist Federation of Australia’s public affairs director. His book, The Challenges of Resolving the Israeli–Palestinian Dispute, has just been published.

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