The International Criminal Court, based in The Hague, Netherlands. Photo / Peter Dejong, AP, File
The International Criminal Court, based in The Hague, Netherlands. Photo / Peter Dejong, AP, File
OPINION
On February 5, the Pre-Trial Chamber of the International Criminal Court made a controversial ruling that the court has "jurisdiction" to prosecute Israelis and Palestinians for crimes committed "on the territory of Palestine".
On the surface, this might seem reasonable. After all, if individuals have committed offences such aswar crimes or genocide, then no matter who they are, they should face the consequences of their actions. However, as is often the case when it comes to Israel, all is not quite as it first seems.
• This article is published as one of two viewpoints on this subject. The other can be read here.
The ruling by the Pre-Trial Chamber was the result of a majority decision of two out of the three judges. However, the third, Judge Kovacs, who voted against the question of "jurisdiction", issued a scathing report soon after the Pre-Trial Chamber's decision.
Judge Kovacs' 150-page report stated the International Criminal Court was overstepping its boundaries as it had "no legal basis in the Rome Statute, and even less so, in public international law".
Key to Judge Kovacs' view, and that of many experts in international law, is that the International Criminal Court can only bring cases against those states who have signed up to the Statute of Rome. This poses two significant problems with the ruling. The first is that Israel, along with many other countries such as the US and India, is not a signatory of the statute. The second is the status of the Palestinian territories.
The Palestinian Authority, which has brought the case to the Pre-Trial Chamber, does not constitute a state under international law. Unable therefore to be a signatory of the International Criminal Court, the court does not have jurisdiction over the Palestinian Authority or the territory it claims. This was reiterated early last year when, in an unprecedented move, Germany, Austria, the Czech Republic, Hungary, Australia, Canada, Uganda and Brazil, all of whom all are signatories, petitioned the International Criminal Court that a formal investigation could not be launched as the Palestinian Authority does not meet the definition of a state. This was ultimately ignored.
The above begs two questions. Why has the Palestinian Authority gone down this route and why has the Pre-Trial Chamber ruled that the International Criminal Court has jurisdiction?
Arguably, the fundamental aspect here is that since the rejection by Arab countries of the 1947 UN Partition Plan to create both Jewish and Arab countries in what was "Mandate Palestine", the Arab nations, and more recently the Palestinians, have consistently refused all opportunities to have their own state. This is because of their continued refusal to accept the reality of Jewish rights, history and indigeneity to the land of Israel.
The Palestinian leadership, despite the Oslo Accords and their rhetoric at institutes such as the UN, have not accepted Israel's right to exist.
Fortunately, the Palestinians have continually failed in their attempts to bring an end to the State of Israel, be it originally through war and then through terrorism. This "failure" has led to a political agenda over past few decades to delegitimise Israel's very existence.
This process of delegitimisation against Israel, which was given a renewed lease of life at the 2001 World Conference against Racism and quickly morphed into a festival of antisemitism, has become the popular mantra of those seeking the end of the world's only Jewish State.
The International Criminal Court, in going against its own mandate and international law, has now also joined the ranks of many similar bodies in failing the 3D test of antisemitism towards Israel: deligitimisation, demonisation and double standards.
In a time when we are seeing genocide committed against the Uyghurs, or the destruction of many Christian communities around the world, the International Criminal Court has undoubtedly become the latest example of an international organisation becoming politicised against Israel.
This ruling, which falls outside of its own mandate, gives the Palestinian leadership more reasons to avoid direct negotiations with Israel and avoid making any tangible progress towards peace.
Organisations such as the International Criminal Court need to focus less on enabling Palestinian intransigence by rejecting their political games and insisting they start serious final status negotiations with Israel.
• Rob Berg is president of the Zionist Federation of New Zealand and also of the Jewish National Fund New Zealand.
