Sheldon Kirshner
Sheldon Kirshner

The International Criminal Court And Israel

Prime Minister Benjamin Netanyahu’s response to the announcement by the chief prosecutor of The Hague-based International Criminal Court that there is a basis for investigating possible war crimes by Israel in the West Bank and the Gaza Strip was high on rhetoric and low on substance. Netanyahu could have attempted to refute her assertions point by point, but instead he took the easy way out and accused the court of “pure antisemitism.”

Leveling that accusation against the court, of which Israel is not a member, may have been politically expedient for Netanyahu, but it was hardly a convincing retort, except in the minds of blinkered Israelis who believe that Israel can do no wrong.

Netanyahu was responding to a carefully-written, rigorously-researched brief released on December 20 by Fatou Bensouda, who wrote, “There is a reasonable basis to believe that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip.”

Bensouda, whose report was several years in the making, directed her observations not only at Israel, but at Hamas and other armed Palestinian groups.

In outlining her argument, she said that Israel may well have committed war crimes by continuing to consolidate its control over the West Bank, by using disproportionate force during the 2014 Gaza war and by responding militarily to weekly Palestinian demonstrations along its border with Gaza.

Bensouda also accused Hamas and other armed groups of deliberately targeting Israeli civilians and using Palestinian civilians as human shields.

Bensouda’s claim that the Israeli government is tightening its grip on the West Bank is well founded, particularly in light of Netanyahu’s recent statement that he intends to annex the Jordan Valley. If a two-state solution is ever to be achieved, the West Bank must be transferred to the authority of the Palestinians under a peace treaty that ends Israel’s protracted conflict with the Palestinian people.

Bowing to U.S. pressure, Netanyahu grudgingly accepted a two-state solution in 2009, but since 2015 he has gradually walked back his promise. He does not even pay lip service to it anymore. Netanyahu’s Likud Party has no intention whatsoever of relinquishing the West Bank. As far as the Likud and its allies are concerned, Palestinian statehood is off the table. At best, Netanyahu will offer the Palestinians limited autonomy, which is a non-starter.

Israel had no alternative but to deploy all the force at its disposal during the war in Gaza five years ago. Lest it be forgotten, Israel unilaterally withdrew from Gaza in 2005, dismantling all its settlements and military bases there. A year later, Hamas defeated Fatah in a pivotal election. In 2007, Hamas seized Gaza from Fatah in a bloody coup. Hamas, which rejects Israel’s existence, has since fired thousands of rockets and mortars at Israel. Instead of building prosperity and uplifting the lives of Palestinians in Gaza, Hamas has squandered its scarce resources to fight Israel in futile skirmishes and battles.

Israel launched the 2014 war, the third one in six years, after fierce bombardments of Israeli communities by Hamas and Islamic Jihad. Israel had no alternative but to respond to Hamas aggression. Contrary to Bensouda’s claim, Israel did not commit a crime by doing so. If the Hamas leadership comes to its senses, it will settle for coexistence with Israel.

Judging by events on the ground, Hamas has yet to learn this important lesson. Last year, starting in March, Hamas encouraged Palestinians in Gaza to mass at the border in weekly protests that always degenerated into violence. This bloodshed has resulted in the deaths of more than 200 Palestinian demonstrators and one Israeli soldier until now. Israel has a right to defend its internationally-recognized border, which Hamas has repeatedly tried to breach. Bensouda does not grasp this principle.

Netanyahu could have marshaled these arguments in answer to Bensouda’s report. Instead, he resorted to self-serving rhetorical flourishes to make his case, equating her findings with antisemitism and rehashing the tired mantra that Jews have “a right to live in the land of the Jews, in the Land of Israel.”

Jews indeed have a right to live in the West Bank, just as Israeli Arabs have a right to live in Israel. But Israel cannot enforce this right by means of a military occupation that allows Jews to build and expand settlements and denies Palestinians statehood.

As Bensouda correctly noted, Israel’s occupation of the West Bank is inadmissible and flouts international law and opinion. With this short-sighted policy as its guiding light, Israel has brought condemnation upon itself. Still more worrisome, the occupation is turning Israel into a colonial power and leading it down a path toward a binational solution, the polar opposite of Zionism.

Netanyahu refuses to recognize these very real dangers and superficially focuses his attention on accusing the International Criminal Court of antisemitism.

About the Author
Sheldon Kirshner is a journalist in Toronto. He writes at his online journal,