By Lev Tsitrin
When attacked from Gaza and Lebanon, Israel went on a counter-offensive; but when the International Criminal Court attacked it by issuing arrest warrants for Netanyahu and Gallant, all I see so far is a defensive move — per Reuters report, “Israel today submitted a notice to the International Criminal Court of its intention to appeal to the court, along with a demand to delay the execution of the arrest warrant,” apparently pursuant to ICC rules that “allow for the U.N. Security Council to adopt a resolution that would pause or defer an investigation or a prosecution for a year, with the possibility of renewing that annually,” “Court spokesperson Fadi El Abdallah [telling] journalists that if requests for an appeal were submitted it would be up to the judges to decide”.
In other words, Israel is playing ICC’s game by ICC’s rules — but how about turning the tables on ICC — in Israeli courts? Why not request that Israel’s courts issue arrest warrants for ICC judges and prosecutor Karim Khan who requested arrests of Gallant and Netanyahu?
The grounds for arrest are clearly present — in order to indict the Israelis, ICC judges violated the law by ignoring ICC’s own rules, and resorted to fraud by willfully ascribing to “Palestine” the status of a state, and as willfully disregarding the rule of complementarity which forbids ICC to pursue suspects who are already being actively pursued by a state actor — i.e. it cannot act against Palestinian terrorists whom Israel is already hunting down. Mr. Khan’s initial request for arrest warrants on three members of Hamas was in brazen violation of ICC’s rules, done with a sole purpose of appearing “impartial” and “evenhanded” while acting solely against the Israelis; in fact, ICC’s grotesque “arrest warrant” issued against the corpse of Mohammed Deif who was killed by Israelis months ago is but an obvious fig leaf covering the brazen illegality of ICC’s entire scheme — a clear testimony of ICC’s foul game.
Obviously, Israeli courts have jurisdiction over the members of ICC — since those ICC members, through their blatant fraud, attempt to harm Israeli citizens; in that respect, Israel’s jurisdiction over Mr. Khan and ICC judges is even more pronounced than was its jurisdiction over Eichmann sixty years ago.
And there is the ability to litigate. Israeli courts are notoriously free-wheeling: because there is no standard of standing in Israel, anyone willing to type up the complaint and pay the court fees can sue, rather than just the people who suffered the harm, Netanyahu and Gallant.
Moreover, Israel’s Supreme court has original — rather than just appellate — jurisdiction, so ICC prosecutor and judges can be sued right in the Supreme court!.
And, unlike the US, the Israeli press would be very receptive to covering such trial. When I sued a bunch of federal judges for fraud and they defended themselves with a self-given, in Pierson v Ray, “absolute immunity” from prosecution in cases where they acted from the bench “maliciously and corruptly,” no “mainstream,” legacy press outlet would report on the bizarre “immunity” that instantly translates into the right for arbitrary, “corrupt and malicious” judging (though there was a volcanic amount of reporting and commentary when judges gave similar immunity to Trump). But Israelis freely discuss their judiciary in the press; they demonstrate for — and against — judicial reform that would curtail Israel’s judges arbitrary powers granted by the use of an undefined and subjective “reasonableness” test. Were a lawsuit against ICC judges and prosecutor filed, it would not be swept under the rug by Israeli media — and the brazen illegality of ICC judges’ “corrupt and malicious” prosecution of Israel and Israelis would be exposed for all to see.
And won’t it be royal fun when Israel’s Supreme court issues arrest warrants against Mr. Khan and ICC judges — as it would have to do, given the brazen illegality of ICC warrants?
It is up to Israelis to restore justice. Don’t just play defense in the court room. Go on the offense!
Lev Tsitrin is the author of “Why Do Judges Act as Lawyers?: A Guide to What’s Wrong with American Law”
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One Response
Well argued!
Why is the current Hamas- initiated conflict with Israel called a ‘war’ and not a ‘murderous home invasion’?
Did not Hamas reject the rules of war by their nature and behavior following attack?
For the defender in a murderous home invasion there are no rules to be followed other than survive and eliminate the criminal invader.