The decision by a panel of the International Criminal Court (ICC) to extend jurisdiction to the Israeli-Palestinian conflict is inappropriate and dangerous for technical, moral and practical reasons.
From a purely technical perspective, the ICC was founded to address mass atrocities and a state’s inability or unwillingness to prosecute them. Neither apply to Israel, whatever one thinks of the conflict with the Palestinians.
Indeed, Israel is a democratic country with one of the most respected legal systems in the world. According to its own documents, the Court “is intended to complement, not to replace, national criminal justice systems. It can prosecute cases only if national justice systems do not carry out proceedings or when they claim to do so but in reality are unwilling or unable to carry out such proceedings genuinely.” This simply does not apply to Israel.
And, while the ICC decision does not say that Palestine is a sovereign state, it flimsily bases the jurisdiction argument on a non-binding 2012 United Nations General Assembly resolution which gave Palestine status within the U.N. as a “non-member observer state.”
By distorting several of its basic rules and regulations, this ICC decision not only does unfair harm to the state of Israel, it politicizes the Court itself with grave repercussions for the integrity of the institution.
On a moral level, the Court loses all credibility by looking at Hamas and the state of Israel on the same plane. Again, one can raise legitimate questions about Israeli actions against Hamas attacks, but that is very different matter from appearing to equate a sovereign nation and a designated terrorist organization. Hamas, in its Charter, in its regular pronouncements, and in its actions, is committed to bringing an end to the Jewish state. Its continuous launching of rockets and missiles deliberately targeting Israeli civilian areas has been going on for years without much comment or condemnation by the international community.
This action by the panel gives an undeserved status to a terrorist group that seeks to do everything in its power to prevent any solution to the conflict between Israelis and Palestinians. The fact that the terrorist organization Hamas itself is even welcoming this step by the court speaks volumes about the recklessness of the ICC decision.
Which brings us to the practical impact of such a decision if fully implemented. First, it comes at a time — when there is more hope in the region than in many years. The normalization process between Israel and Arab states — the UAE, Bahrain, Sudan and Morocco— reflects a new world in which common interests and values of Arabs and Israelis are now taking precedence over differences and conflict. At the same time, if the same kind of rational thinking on all sides could be applied to Israeli-Palestinian matters, these normalizations could serve as a bridge to steps forward between Israelis and Palestinians.
The ICC decision, which will undoubtedly serve to reinforce efforts to demonize and delegitimize Israel, is a leftover of the failed international approaches of past decades. There is a new dynamic in the region and the ICC is not only out of step with this new dynamic, but it also threatens to undermine it by playing into the hands of extremists in the region, rather than those who seek accommodation and compromise. If a two-state solution is the goal of the international community, this approach by the ICC will undermine any effort to bring the parties together. It will reinforce divisions and antagonism, not much-needed confidence building and cooperation. And this comes at a time when the focus of the new Biden administration and other parties should be to build an environment where constructive engagement can begin.
The Biden administration has properly expressed its concern about the panel decision, calling it not only unjust but also an action that targets Israel unfairly. Indeed, this decision has implications for US engagement internationally, in Afghanistan and beyond.
A new prosecutor will take the helm of the ICC in June and will be tasked with determining the future direction of the Court, and whether to launch an investigation of Israel and Hamas based on this recent decision. Given the threat that this deeply faulty decision poses to the integrity of the ICC and the prospects for an improvement in Israeli-Palestinian relations, Washington and the international community must make clear their disagreement with this decision and take steps to enhance the functionality and credibility of the Court.