The International Criminal Court

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Fatou Bensouda
ICC Prosecutor Fatou Bensouda (Photo by Max Koot Studio/ Creative Commons Attribution-Share Alike 3.0 Unported license)

No one favors genocide, war crimes, crimes against humanity or wanton aggression. Despite that near-universal revulsion, few want the International Criminal Court to investigate citizens of their country for these unspeakable acts. That’s why the United States and Israel are among the states that don’t belong to the ICC.

The Palestinians, however, who are recognized by the ICC as the State of Palestine, are members. And it was a request from the State of Palestine that spurred ICC prosecutor Fatou Bensouda to announce last week that after a five-year examination, the ICC determined it has jurisdiction to investigate “the situation in Palestine, and that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem.”

Prime Minister Benjamin Netanyahu immediately denounced the decision as “anti-Semitism.” U.S. Secretary of State Tony Blinken’s response was more analytical. He said: “The United States firmly opposes and is deeply disappointed by this decision. The ICC has no jurisdiction over this matter. Israel is not a party to the ICC and has not consented to the Court’s jurisdiction, and we have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel.” Blinken also observed: “The Palestinians do not qualify as a sovereign state and therefore, are not qualified to obtain membership as a state in, participate as a state in, or delegate jurisdiction to the ICC.”

Israel needs to decide how it will respond to an international investigation it doesn’t recognize. It could cooperate to a limited extent; it could serve notice that it intends to conduct its own investigation so that there’s no need for the ICC to intervene; or it could simply ignore the investigation. Although Israel’s Justice Ministry has said it is prepared to fully defend any citizen liable to be investigated, no formal decision on approach has been made.

And that makes sense, since things might change in a few months when Bensouda completes her term and will be succeeded by British jurist Karim Khan, who may reconsider the wisdom of the undertaking.

As for the announced investigation, it will focus on Israel and Hamas, which fought a 50-day war in 2014. The start date of the investigation is June 13, 2014 — the date specified by the State of Palestine. That’s significant, since the day before the start date Hamas terrorists kidnapped and murdered three Israeli teenagers in the Gush Etzion area of the West Bank. It would seem that anyone wishing to conduct a meaningful investigation into the “situation in Palestine” should certainly want to include that cold-blooded and heart-wrenching incident.

In the end, the actions of the International Criminal Court are not likely to make much difference. But the distraction of the exercise is another reminder that Israel’s ongoing, unresolved issues with its Palestinian population have consequences. For those of us who have long held Israel in esteem, it is heartbreaking to see the Jewish state accused like some petty dictatorship or warlord in an international criminal court.

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