The highly politicized International Criminal Court (ICC) is not a real court in any meaningful sense of that word. Unlike real courts, which have statutes and common law to interpret, the International Criminal Court just makes it up. Pictured: The ICC's chief prosecutor, Fatou Bensouda, holds a press conference on May 3, 2018 in Kinshasa, Democratic Republic of Congo. (Photo by John Wessels/AFP via Getty Images)
The highly politicized International Criminal Court just declared statehood for Palestinians. They did it without any negotiation with Israel, without any compromise, and without any recognized boundaries. They also did it without any legal authority, because the Rome Statute, which established the International Criminal Court, makes no provision for this criminal court to recognize new states. Moreover, neither Israel nor the United States ratified that treaty, so the decisions of the International Criminal Court are not binding on them. Nor is this divided decision binding on signatories, since it exceeds the authority of the so-called court.
I say "so-called" court, because the International Criminal Court is not a real court in any meaningful sense of that word. Unlike real courts, which have statutes and common law to interpret, the International Criminal Court just makes it up. As the dissenting judge so aptly pointed out, the Palestine decision is not based on existing law. It is based on pure politics. And the politics of the majority decision is based in turn on applying a double standard to Israel — as the United Nations, the International Court of Justice and other international bodies have long done.
There are numerous other groups — the Kurds, the Chechens and the Tibetans among them — who claim some degree of independence. Yet neither the International Criminal Court nor other international organizations has ever given them the time of day. But the Palestinians — both in the West Bank and Gaza — who have refused to negotiate in good faith and have used terrorism as their primary claim to recognition, have been rewarded for their violence by this decision.
Israel, which has offered the Palestinians statehood in exchange for peace on several occasions, has been punished for its willingness to negotiate and its determination to protect its citizens from Palestinian terrorism.
There are so many serious war crimes and other violations of humanitarian laws occurring around the world that the International Criminal Court deliberately ignores. The chief prosecutor sees as one of her roles to focus attention away from third world countries, where many of these crimes occur, and toward Western democracies. What could be a better target for this perverse form of "prosecutorial affirmative action" than Israel. I say perverse because the real victims of such selective prosecution are the citizens of these third world countries whose leaders are killing and maiming them.
Israel, on the other hand, has the best record on human rights, the rule of law, and concern for enemy civilians than any nation faced with comparable threats.
According to British military expert Richard Kemp, "No country in the history of warfare has done more to avoid civilian casualties than Israel did in Operation Cast Lead." Israel's Supreme Court has imposed daunting restrictions on its military and has provided meaningful remedies for criminal acts committed by individual Israeli soldiers. The role of the International Criminal Court, according to the treaty, is to intrude on the sovereignty of nations only if those nations are not capable of administering justice. The principle of "complementarity" is designed to allow courts in democratic nations, like Israel, to address their own problems within the rule of law. Only if the judiciary totally fails to address these problems does the court have jurisdiction — even in cases involving parties to the treaty, which Israel is not.
The United States should reject the International Criminal Court decision not only because it is unfair to its ally Israel, but because it sets a dangerous precedent that could be applied against the United States and other nations that operate under the rule of law. Israel should challenge the decision but should cooperate in any investigation, because the truth is its best defense. Whether an investigation conducted by the International Criminal Court can produce the truth is questionable, but the evidence — including real time video and audio — will make it more difficult for ICC investigators to distort reality.
All in all, the International Criminal Court decision on Palestine is a setback for a single standard of human rights. It is a victory for terrorism and an unwillingness to negotiate peace. And it is a strong argument against the United States and Israel joining this biased "court," and giving it any legitimacy.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School and author of the book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse Publishing, 2019. His new podcast, "The Dershow," can be seen on Spotify, Apple and YouTube. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.