Undermining the International Criminal Court

Amb. Dore Gold and Amb. Alan Baker, eds.

Introduction

Amb. Alan Baker

As early as the late 1950s, following the Holocaust of the Jewish People by Nazi Germany and its collaborators, Israel was one of the founding fathers of the post-Second World War vision of a permanent international criminal tribunal.

The vision was to establish a juridical body to adjudge the “most serious crimes of concern to the international community as a whole.” As such, from the early 1950s and up to the adoption of the International Criminal Court’s Statute at the Rome Conference in 1998, Israel took an active and central part in the process of negotiating and drafting the court’s founding documents.

The preambular provisions of the Statute indeed stressed the noble and solemn determination of the States parties “for the sake of present and future generations, to establish an independent, permanent international Criminal Court.”

The very nature and purpose of such a central, independent and vital juridical body to adjudge the most serious crimes of international concern would imply that such a body would be completely independent of pressures and influence, and immune from politicization. One might have assumed that the international community would not permit any attempt to prejudice the Court’s integrity, credibility and authority through political abuse and manipulation.

However, for several years, the Office of the Prosecutor of the International Criminal Court has been deluged with complaints by the Palestinian leadership, purporting to represent a non-existent “State of Palestine.” Such a huge volume of complaints are part of the ongoing Palestinian attempts to delegitimize the State of Israel in the institutions of the international community, including the ICC, through the cynical abuse and manipulation of those institutions.

After conducting preliminary inquiries into the many Palestinian referrals, the Prosecutor formally confirmed, in February 2020, her intention to open a formal investigation into the “Situation of Palestine.”

From the earliest days following the establishment of the Court, and following the completion of the drafting of the Court’s Statute, Israel found itself obliged to express concern at attempts to politicize the Court through political abuse and manipulation, including the insertion into the Court’s Statute of clearly political provisions directed against Israel.

Following the adoption of the ICC Statute, Judge Eli Nathan, Head of Israel’s delegation to the 1998 Rome Conference, explained why Israel was obliged to vote against its adoption:

We regret being obliged here today to vote in a way that prevents us, as victims of genocide, and as founding fathers of the concept and idea of the International Criminal Court, to vote in favor of its Statute.

We still maintain the hope that somewhere, good sense will prevail and the International Criminal Court, which is to be established as a result of all our hard work, will not become just one more political forum to be abused for political ends by an irresponsible group of states, at their political whim. We continue to hope that the Court will indeed serve the lofty objectives for the attainment of which it is being established.

From the very beginning, the Jerusalem Center for Public Affairs has been at the forefront in sounding warning alarms to the international community in light of the concerted Palestinian policy of abusing the ICC and turning it into its own, private back-yard Israel-bashing tribunal.

Following the initial Palestinian attempt, in 2009, to engage the Court, through its declaration recognizing the Court’s jurisdiction, the President of the Jerusalem Center, Ambassador Dore Gold, submitted to the Office of the Prosecutor on October 20, 2010, a note questioning the legality of the Palestinian declaration in light of statutory requirements, and historic and diplomatic considerations.

Similarly, immediately following the Palestinian transmission of documents to the Secretary General on January 2, 2015, requesting accession to the Rome Statute as a state, Ambassador Alan Baker, head of the International Law Program of the Jerusalem Center, submitted a letter to the UN Secretary General, the UN Legal Counsel, and the ICC Prosecutor, pointing to the inherent legal inconsistencies in accepting the Palestinian request, undermining the very integrity of the Court.

This monograph is a compilation of relevant articles and studies published by the Jerusalem Center, including the above-noted submissions by Ambassadors Gold and Baker, detailing the extent of the political abuse and manipulation of the Court, and the extent to which the Court’s Prosecutor has actively played along and even encouraged such Palestinian abuse.

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