Why the International Criminal Court is Wrong: Israel Is Not Guilty of ‘War Crimes’

by Hugh Fitzgerald

Fatouh Bensouda thinks – thinks! – that Israel’s settlements may be a “war crime.” Where does this notion come from? It comes from her (mis)reading of Article 49 of the Fourth Geneva Convention, that states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” It also prohibits the “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory.”

This Article was written as a response to the behavior of Nazi Germany, which moved ethnic Germans into several countries it occupied during World War II, to provide more Lebensraum for the Master Race, and expelled non-Germans from occupied lands, both to make room for those Germans and to forcibly transfer many of those non-Germans to slave labor camps.

Israel has not violated Article 49 of the Fourth Geneva Convention, by building its settlements in Judea and Samaria (a/k/a the “West Bank”) for the following reasons:

First, Israel is not an “occupying power” in Judea and Samaria (the West Bank). The West Bank is part of the territory assigned to the Jewish National Home by the Mandate for Palestine. While Jordan held that territory from 1949 to 1967, no other countries recognized its sovereignty save for Pakistan and Great Britain; Jordan was the “occupying power” during those 19 years. After the Six-Day War, Israel was able to exercise its preexisting legal right, under the provisions of the Mandate, to settle Jews anywhere from the Golan in the north to the Red Sea in the south, and from the Jordan River in the east to the Mediterranean in the west.

Prior to 1967, there had been no internationally recognized legal sovereign. Successive Israeli governments have noted that all authorized settlements are legal and consistent with international law. Bensouda, however, belongs to that not inconsiderable group who refuse to recognize the continued relevance of the Palestine Mandate and the territories it included, where “close settlement by Jews on the land” was not only legal, but to be positively encouraged.

Second, Israel has consistently argued that the settlements are not in violation of the Fourth Geneva Convention since, in its view, Israeli citizens were neither deported nor transferred to the territories. Those Israelis who now live in settlements in the West Bank or the Golan were not moved en masse according to government fiat, as happened with Germans moved about by the Nazi government. These Israelis made their housing decisions as individuals; the government did not forcibly “deport or transfer” them to settlements.

From “ICC has jurisdiction to probe Israel, Hamas for war crimes, pretrial judges rule,” by Jacob Magid, Times of Israel, February 5, 2021:

In Friday’s ruling, Marc Perrin de Brichambaut of France and Reine Adélaïde Sophie Alapini-Gansou of Benin represented the majority opinion of the pretrial chamber, while Péter Kovács of Hungary wrote the dissenting opinion.

Israel had the option of submitting its position on the matter to the ICC but chose not to, “out of a fundamental view that the court has no authority to carry out the investigation,” a diplomatic official told Hebrew media last year.

As such, Israel cannot appeal this ruling.

Israeli officials will meet in the coming days to discuss strategy moving forward, including the possibility of a shift away from the current path of refusing to cooperate with the ICC, Foreign Ministry officials say.

Israel has long argued that the ICC has no jurisdiction, as there is no sovereign Palestinian state that could delegate to the court criminal jurisdiction over its territory and nationals.

Attorney General Avichai Mandelblit published a 34-page-long legal opinion ahead of Bensouda’s statement in 2019, detailing why Israel did not believe the court had the right to intervene. “The principled legal position of the State of Israel, which is not a party to the ICC, is that the Court lacks jurisdiction in relation to Israel and that any Palestinian actions with respect to the Court are legally invalid,” Mandelblit wrote in the opinion.

Mandelblit noted that only sovereign states can delegate criminal jurisdiction to the court, claiming that the Palestinian Authority did not meet the criteria; asserted that Israel too had “valid legal claims” over the territory in question; and added that the sides had agreed in the past “to resolve their dispute over the future status of this territory in the framework of negotiations.”

“Palestine” as a state is a fiction. A state has to exercise complete and exclusive control over its territory. The PA does not have complete control over the territories it claims; Gaza is ruled by Hamas; in the West Bank, Area B is partially, and Area C is completely, under Israel’s control. only in Area A of the West Bank does the PA exercise such control. Bensouda ignores that reality in treating “Palestine” as a state that has submitted itself to the jurisdiction of the ICC.

He [Mandelblit] said that by turning to the ICC, the Palestinians were “seeking to breach the framework agreed to by the parties and to push the Court to determine political issues that should be resolved by negotiations, and not by criminal proceedings.”

In February, the “State of Palestine” and seven other countries, as well as 33 international organizations and independent scholars of international law, submitted so-called amicus curiae (friend of the court) documents, offering their views on whether Palestine is a state that can transfer criminal jurisdiction over its territory to The Hague.

Germany, Australia, Austria, Brazil, the Czech Republic, Hungary and Uganda all posited that Palestine cannot transfer criminal jurisdiction over its territory to The Hague.

Those seven countries have taken the position that “Palestine” is not a state in the traditional meaning of the term, and so cannot transfer criminal jurisdiction over its territory to the ICC.

Even those countries that have formally recognized the “State of Palestine” along the pre-1967 lines argued that Palestine cannot necessarily be considered to have validly granted the ICC jurisdiction to probe war crimes allegedly committed in its territory.

Responding to those countries in its Friday ruling, the pretrial chamber noted that none of those seven countries raised an objection when the Palestinians applied for membership at the ICC or any time after. Regardless of Palestine’s status under general international law, its accession to the [Rome] Statute followed the correct and ordinary procedure,” the chamber ruled.

Those seven countries did not object when “Palestine” applied for membership in the ICC. Therefore, two judges of the panel argue, they are forever estopped from denying that “Palestine” is a state. Can’t countries that have taken a second, deeper look, possibly hearing arguments they had not heard before, change their mind on the subject of whether “Palestine” meets the minimum conditions for a state? Of course they can. And even if “Palestine,” in acceding to the ICC’s jurisdiction, “followed the correct and ordinary procedure,” i’s dotted and t’s crossed, that has nothing to do with whether or not “Palestine” is a state, and thus qualified to submit to the jurisdiction of the ICC in the first place.

In the first part of their decision, the panel asked whether the issue at hand was merely political and therefore not something that they could adjudicate. To this, the chamber stated that it “shall only assess the question of the Court’s jurisdiction over the Situation in Palestine and its extent. Potential consequences that might arise from the present decision are outside the scope of the Chamber’s mandate.”

While most of the international community does not recognize Palestine as a state, it is still a member of the ICC, whose members are not determined based on whether they “fulfill the prerequisites of statehood under general international law,” the chamber ruled….

So “Palestine” may not be state in the view of most of the world, but it can still be a member of ICC. If that is accepted, what if other non-state actors were to attempt to join the ICC, what might then follow? Could various NGOs, wrapped in their cloaks of moral superiority, be included in the ICC – the Organization of Islamic Cooperation, Amnesty International, Human Rights Watch? Once you’ve admitted non-states – or would that be allowed only in the case of “Palestine”? – the dams burst, and all sorts of non-state actors, beginning with the left-wing NGOs, will want to become part of the ICC’s machinery.

The ignorant and o’erweening prosecutor, Fatouh Bensouda, “politicized” her office by going beyond her original assignment and is also taking up not war crimes sensu stricto, but such political questions as the legitimacy of Israel’s settlements, and its right to defend its security fence against violent attempts by the marchers of the Great March of Return to breach it. The three-judge panel now looks impotent. For by declaring jurisdiction over Israel, which never agreed to become part of the ICC, that panel then sets up the expectation that it will enforce its decision. But it has no certain way to enforce any ruling against the Jewish state and its officials. The ICC has no army, police, or other enforcement mechanism with which to ensure that its decisions have consequences. It had no way, for example, of enforcing its findings on war crimes in Darfur; the Sudan simply refused to hand over Omar Bashir; it rejected all cooperation with the ICC; the Arab League backed it up. If a state decides not to accept a finding by the ICC, even if it is obligated, as a member, to do so, there is little the ICC can do about it. Imagine if the ICC had found American troops in Afghanistan had committed war crimes. Or if it had found China guilty, not only of imprisoning and tormenting Uighurs in “re-education camps, but of forcibly moving millions of Han Chinese into Xinjiang to dilute the Uighur population, a clear violation of Article 49 of the Fourth Geneva Convention. How would the ICC give its decisions practical effect?

The ICC’s supposed moral authority is, in the case of endlessly maligned Israel, no authority at all. At most the ICC might be able to prevent a few Israeli officials from traveling to certain countries. Bensouda may complete the presentation of her findings to the court before she leaves, none too soon, this June. The ICC will then render its solemn, if hardly Solomonic, decision; it may conclude that the Jewish state, despite the witnesses who declare the IDF the “most moral army in the world” (Colonel Kemp), and therefore some Israeli officials and military men, have been guilty of “war crimes”; Israel will ignore its decision, and again present its comprehensive and convincing view of the matter; and – much to the delight of some of us — the ICC’s impotence will be on vivid display.

First published in Jihad Watch.