James J. Marlow
James J. Marlow

Part one of two: What is international law?

Credit: Ella Olevson-Dayan

The International Criminal Court in The Hague does NOT have the authority to probe Israel’s action in the West Bank and Gaza, and Israel is quite right to refuse to cooperate with the investigation.

Two out of the three ICC judges decided to open a probe into events from 13 June, 2014. But on 12 June, Palestinian Hamas kidnapped Israeli teenagers, Naftali Frenkel, Gilad Shaer and Eyal Yifrach, and murdered them.

Israel had been under attack with rocket fire from Gaza for a number of weeks and finally retaliated with its military might on 13 June. But for some strange reason, the ICC decided that the events leading to Israel’s retaliation were not in the public interest.

Many have asked if Israel has nothing to hide, an ICC probe should surely be welcomed? But the court was never set up to investigate countries, it was created to investigate war criminals. By deciding to go after Israel and its soldiers, the International Criminal Court is acting against the very reasons the court was set up.

So let’s discuss international law. There is no such thing as a world government or a world court or even a world legislator. The concept of international law began shortly after WWII when governments from across the world decided, they had to find a way to all work together and agree on certain principles.

So the basis of international law, began with agreements and treaties, like the Geneva Convention. Therefore, international law received its legitimacy and credibility, because all the counties involved, agreed to abide by it.

Discussing international courts, is not like discussing courts in the legislative sense. When an elected government legislates, courts can sometimes interpret those laws. But an international court is different because it is a body that mediates treaties and deals with treaty disputes.

There are between, 195 to 215 countries in the world, depending on how one defines a country. Out of those, 123 of them pledged to work together by signing an agreement called, The Rome Statute and thus created an international court. But nearly half of the world, including the United States and Israel, did not sign up to the agreement.

The Rome Statute itself says, if anything happens within the territorial boundaries of a member nation, then that member can sue in the ICC regardless of who was responsible.

Two of the three judges concluded that Palestine does have territory, although they declared that under the Rome Statute, Palestine is not a fully independent state, but is “enough of a country”, that has territory.  Therefore because Israel entered that territory, it is now subject to the jurisdiction of the ICC.

There are certain and very limited exceptions listed in Chapter 7 where legally, the ICC would have jurisdiction. For example, United Nations Security Council resolutions would allow the UN to take action against a person or nation, who did not sign the treaty. This could be a war criminal, like the former Sudan President Omar Al Bashir, or the decision that led to coalition forces ousting Iraqi troops from Kuwait in 1991.

This is one reason why huge protections were put in place for permanent members of the Security Council to have a veto. If a nation did not agree to a treaty, but the action was still brought against it, there had to be protections put in place.

This is the first time in the history of international law that a country that never agreed to the rules of the Rome Statute is being subjected to the terms of that treaty, besides the exceptions listed above in Chapter 7.

Israel regularly investigates all of its military activities and is quite capable of carrying out any investigations needed by itself. It has proved this as a matter of course, time and time again.

The ICC was formed in the image of the courts of the Nuremburg trials that brought Nazis to justice. But from Nuremburg to The Hague, things have been turned upside down.

To conclude with a quote from Prime Minister Netanyahu, “A body formed to defend human rights, has become a body that in actuality, defends those that trample on human rights.”

About the Author
James J. Marlow is a broadcast journalist and public relations media consultant. He has previously worked for ITN, EuroNews, Reuters, Daily Mail, Daily Express, LBC Radio and Sky News. In addition he has trained and prepared hundreds of business and entertainment people, politicians and Rabbis, for the media, including television, radio and audiences.
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