The Palestinians have chosen to abuse the idea at the heart of The Hague to mount a diplomatic assault on Israel • PM Netanyahu calls on Israel's allies to block move • Court has to decide whether to snub word leaders or pursue a case that may backfire.
The entrance to the International Criminal Court at The Hague | Photo credit: Reuters  |
The International Criminal Court in The Hague does not act against states. Its mission is to protect individuals against the actions of other individuals, no matter how powerful they may be, with aim of preventing crimes against humanity. The humane notion at the heart of The Hague, however, is currently being abused by Palestinian Authority President Mahmoud Abbas, in a manner that shatters international norms. Then again, Israel's enemies have always tried to find loopholes in every situation. It falls to the prime minister of Israel to thwart this diplomatic attack, and in this case, much like in many others, one must give credit where credit is due and acknowledge that Prime Minister Benjamin Netanyahu was first to recognize the Palestinian gambit.
Japanese Prime Minister Shinzo Abe and Canadian Foreign Minister John Baird, whose respective nations make significant contributions to the ICC's budget, thus keeping it afloat, both visited Israel this week.
During his meeting with the Japanese dignitary, Netanyahu asked Attorney-General Yehuda Weinstein to elaborate about Israel's issue with Palestinian's petition to The Hague. "If I were convinced justice would be served by Israel appearing in the ICC I would recommend we do so. We have solid evidence. But I'm not convinced," Weinstein said. Abe was very attentive, but unfortunately, he had to cut his visit to the region short after the Islamic State group struck at Japan, threatening to kill two Japanese hostages unless Tokyo paid a $200 million ransom.
The Prime Minister's Office and the Foreign, Justice and Defense ministries agree on the serious nature of the Palestinians' move, as well as on its potential ramifications, and everyone believes Abbas' application to The Hague had crossed a line. Netanyahu has decided that the best way to curb this move was to prevent the ICC from discussing cases against Israel. To that aim, the prime minister has sent a special missive to a number of prominent Western leaders, including U.S. President Barack Obama, Canadian Prime Minister Stephen Harper, German Chancellor Angela Merkel, British Premier David Cameron, and Australian Prime Minister Tony Abbott, demanding they prevent the ICC from hearing cases against Israeli officials.
"The International Criminal Court was established in the wake of grave events that took place during the 20th century, and especially World War II, during which the Nazis annihilated of six million of our people," Netanyahu's missive read. "Seven decades after the Holocaust, the Palestinians boldly point a finger at Israel, which is the most threatened democracy in the world. Rather than condemn tyrannical regimes that massacre hundreds of thousands of innocent people, they accuse us -- a nation that has been struggling to survive from its very inception -- of committing war crimes."
The missive was more than just an act done on a wing and a prayer, but a true call to action meant to mobilize the leaders of the free world -- Israel's friends -- to take action. The leaders heeded the call and have set several moves in motion, and now Israel is waiting to see what will become of it: Will The Hague snub world leaders, or will it come to its senses and avoid a move that could only end up backfiring and undermining the ICC.
Same game, new rules
Nearly a decade ago, Israel was able to fend off a similar move by the Palestinians, when inquiries were made with various courts worldwide, to see if they would prosecute Israeli officials. The move was thwarted as each of the countries approached passed laws to essentially prevent authorities from detaining or questioning Israeli officials over false claims. This time, the Palestinians utilized the U.N.'s mechanism, which is an arena that follows different rules, and one where the Palestinian already know they have more leeway.
The Palestinian demand to try Israel before an international court seeks to imply that the Israeli legal system is grossly lacking. In other words, it is an underhanded attempt to accuse Israel of being a country where crimes are not investigated, and therefore as one that fails to meet the high standards of the international community. Defense Minister Moshe Ya'alon recently explained that Israel investigates any case suspected of being a war crime, but stressed that international law makes a clear distinction between military decisions and war crimes: If, heaven forbid, a soldier were to open fire on an individual who has surrendered, then an investigation would surely follow; but a decision to target an arch-terrorist during a military operation that is closely supervised and documented by legal counsels, does not warrant external intervention. A nation has the right to defend itself according to its captains' discretion, which is a responsible and extensive one at that, Ya'alon said.
As part of its efforts to curb this dangerous Palestinian move, Israel has also been promoting economic sanctions against the Palestinian Authority. The government has already suspended the transfer of tax revenue Jerusalem collects on behalf of Ramallah, to the tune of 500 million shekels ($126 million), and now it is pursuing ways to convince the U.S. to suspend the financial aid it provides them as well, should the Palestinian Authority refuse to yield.
The government has also decided to launch a "smear campaign" meant to delegitimize the ICC's authority to hear the case against Israel. Foreign Ministry officials have expressed their reservations over the move, but Netanyahu has ruled that in the absence of any chance that Israel would see justice prevail at The Hague, it is best to cover all bases.
A senior Jerusalem source explained this week that since Israel is no stranger to international probes involving military conflicts with terrorist organizations, not only does it make sure that legal experts oversee operations in real time, it also makes sure to have unusual operational incidents investigated by both internal and external experts.
While the Military Advocate General usually conducts these investigations, it sometimes invites external investigators to participate. State Comptroller Yosef Shapira, for example, will review Israel's decision making process during Operation Protective Edge, waged in the Gaza Strip over the summer, with three world renowned legal experts working alongside him: Professor Michael Newton, an international humanitarian law expert, who consulted the Iraqi Special Tribunal during former dictator Saddam Hussein's trial in 2004; Professor Moshe Halbertal, of New York University, who consulted on the Israel Defense Forces Code of Ethics; and Professor Miguel Deutsch, who served on the public committee headed by retired Justice Jacob Turkel, which investigated the events of the 2010 naval commando raid on a Gaza Strip-bound Mavi Marmara.
The goal is to hold a comprehensive probe, but also to render investigations by global bodies unnecessary, as The Hague is highly unlikely to hear cases pertaining to incidents that have been reviewed by credible Israeli panels.
War of attrition
Much of this week's headlines focused on Sunday's strike in the Quneitra region, near the Israel-Syria border, in which Iranian Revolutionary Guard General Mohammad Ali Allahdadi and six Hezbollah operatives were killed, including Jihad Mughniyeh, the son of Hezbollah military commander Imad Mughniyeh, who was allegedly killed by Israel in 2008.
While there is no proof Israel had mounted the strike, Hezbollah could, theoretically, pursue legal action against it in The Hague. The operatives killed may have been part of a terrorist organization, but none of them were "ticking bombs." Nevertheless, the link between the incident and ICC prosecutor Fatou Bensouda's decision to open an initial probe into alleged war crimes against Palestinians, is more tangible than it may seem.
"The ICC's decision has already prompted Hamas to declare that it will file charges against Israel [with The Hague], and I won't be surprised if Hezbollah, al-Qaida, and Islamic State will soon follows suit," Netanyahu said. He criticized the ICC's decision as "absurd," saying, "What has become of the ICC? This is the complete reversal of the fundamental objectives for which it was founded. In a miscarriage of justice like no other, the Palestinians are using this court against the Jewish state, which defends itself against the murderous terrorism targeting us, and now the rest of the world as well. Indeed, nothing can be more absurd."
One should note that despite the political arena's preoccupation with the March 17 elections, all Jewish parties have denounced Abbas' move. Hatnuah Chairwoman Tzipi Livni, who during her term as justice minister also served as chief Israeli negotiator, said this week that Abbas had deadlocked the negotiations so he could chart a well-planned diplomatic and legal course.
In 2013, attorneys Mordechai Tzivin and Uri Yablonka filed an ICC complaint against Abbas, over his support of terrorism. The case was never heard, but the two now hope that given the ICC's review of the Palestinian issue, their motion will be reviewed as well. "The first measure of success of [an ICC] case is a subpoena from The Hague," Tzivin said, adding that failure to appear places the individual in question at risk of being detained by almost any country worldwide.
Tzivin hedged that the Palestinians would also try to use the ICC to dispute the settlement enterprise in Judea and Samaria. "Anyone linked to the settlement enterprise could be subpoenaed, because according to [international] law, a country is barred from having civilians move to occupied territory. The desire to exhaust Israel is played out on a very broad spectrum."
'PA's move provocative'
Baird, for whom this was the sixth visit to Israel in the past four years, told Israel Hayom of his meetings with Netanyahu, President Reuven Rivlin, and Intelligence and Strategic Affairs Minister Yuval Steinitz. "I have a special rapport and a good friendship with the leadership here," he said. "Israel is a close friend of Canada. We appreciate the strong relationship with Israel and we're happy about working with the prime minister."
Canada's steadfast support of Israel, however, is not appreciated by the Palestinians. While traveling in Ramallah to meet with PA Foreign Minister Riyad al-Maliki, Baird's motorcade was egged. The dubious welcome left him unfazed. Canada, he said, is proud of its position and stands by it.
The Canadian foreign minister explained to his Palestinian counterpart that "the Palestinian's decision to approach The Hague is provocative. It is an attempt to tie Israel's hands while it tries to fight terrorism." Baird told Maliki that Canada has already presented the ICC with its objections, and will continue to do so. "We will not allow a probe against a country like Israel, which has an independent legal system" and a comprehensive auditing mechanism.
Netanyahu must be credited for forging Israel's strong bond with Canada, based on shared values, as well as similar diplomatic, security and economic interests on which mutual discourse could be formed.
In 2010, the raid on the Marmara, which turned into an international incident, forced Netanyahu to cut short a visit to Canada, and gave the Canadians a glimpse into the erratic schedule of an Israeli prime minister. "I've spoken with Netanyahu about the fight against global terrorism, which has clearly become the problem from our generation, and Israel and the Jewish people are at the forefront of this fight. Our solidarity extends beyond the Jewish state, to those who have lost loved ones in terrorist attacks like the one in France. Anti-Semitism should concern every civilized person in the world. Canada has led an international coalition against anti-Semitism. That is why we want to support pluralistic regimes that can coexist peacefully with those around them," Baird said.
"This is why Canada is a significant part of the coalition against Islamic State. We share significant concerns over Iran's support of terrorism, which manifests in many countries in the region -- Lebanon, Iraq, Yemen, Bahrain, and Saudi Arabia -- as well as over their nuclear program and human rights violations.
"The discourse with Israel extends to all of these issues," he said. "The terrorist attacks in Paris were a wake-up call for the broader Western world. Israel and its neighbors are dealing with a difficult reality every day."
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