ICC refuses to prosecute war crimes by Palestinians while actively pursuing Israeli leaders

The International Criminal Court prosecutor is officially initiating a war crimes investigation into Israeli actions in "Palestinian territories," according to news reports coming out today.

This raises many legal questions about who are the Palestinian people, what is included in the geographic territory of Palestine and what is its status in the international community.

However, while much confusion exists over the term “Palestine” and the "Palestinian Authority," the goals of the Palestinian leadership have never been more clear.

The “Palestinian Authority” is a term generally used to define two separate and rival governmental factions: the Palestinian Liberation Organization (PLO), which controls certain Palestinian areas of the West Bank, and Hamas, which controls the Gaza Strip.

Both are completely dictatorial regimes, lacking democracy, proper rule of law and an independent court system. Neither faction is currently willing to negotiate with Israel in order to find a mutually-agreed upon solution to the conflict, and both share the same explicitly-declared goal of attaining Palestinian control over all of Israel, from the Jordan River to the Mediterranean Sea, which they commonly refer to as Palestine.

The two organizations differ, however, on how to reach their objectives. Whereas Hamas asserts that only violent warfare against Israel will achieve its goals, the PLO prefers a diplomatic assault on the Jewish state.

In its latest attack on Israel, the PLO has been validated by the International Criminal Court in The Hague (ICC), which decided on Feb. 5 that it can investigate alleged crimes by Israeli leaders in the West Bank, East Jerusalem and the Gaza Strip. Sadly this decision, in essence, is willful consent by the ICC to be misused as an unconventional weapon against the Jewish state in the hands of the PLO.

The ICC was created by the United Nations on July 1, 2002, under the Rome Statute, as a forum for prosecuting individuals accused of genocide, war crimes and crimes against humanity.

In accordance with the Rome Statute, its constitutional document, the ICC’s jurisdiction is limited to states which have ratified the Rome Statute and which have no effective legal framework for prosecuting leaders who carry out such heinous crimes. This has made the ICC relatively fruitless in achieving its goals, since large countries such as China, India and Russia never ratified the Rome Statute (although the latter is a signatory).

For this and other reasons, the ICC has proven itself to be absolutely impotent in prosecuting serious war crimes, such as those which have taken place recently in Syria, Russia, Iran, Chechnya and the Crimea, as well as those of the Houthis and the Saudis in Yemen.

The recent decision of the ICC to investigate alleged crimes by Israeli leaders is absolutely scandalous for several reasons.

First of all, nothing vaguely reminiscent of genocide, war crimes or crimes against humanity have taken place by Israeli leaders in the West Bank, East Jerusalem or the Gaza Strip. On the other hand, crimes including torture and executions without trial, have unquestionably been committed by both Hamas and the PLO in those areas.

Secondly, unlike the Palestinian Authority, Israel has not ratified, and is not party to, the Rome Statute.

Lastly, Israel - in stark contrast to the Palestinians - has no need for the ICC. It actually has an independent court system with a robust rule of law that frequently prosecutes its most senior leaders, including former President Moshe Katsav and Prime Minister Ehud Olmert who spent time in jail, as well as the three current criminal trials taking place against Prime Minister Benjamin Netanyahu.

This is the only case in its history in which the ICC has granted membership to the Rome Statute to a non-state actor (Palestine), as well as claimed jurisdiction over the territory of a non-member state (Israel).

To the extent that the ICC has any jurisdiction in such areas, it should actually be limited to the prosecution of war crimes by Palestinians. In fact, on March 6, 2017, I personally submitted a request to the ICC, on behalf of the Jerusalem Institute of Justice (JIJ), to prosecute the supreme leader of Hamas, Ismail Haniyeh for war crimes against Palestinians in the Gaza Strip. JIJ’s request included hundreds of pages of irrefutable evidence that such crimes had been committed against innocent Palestinians, including using them as human shields and stockpiling weapons in civilian infrastructure, further placing them in harm’s way.

So far it appears that JIJ’s request to investigate Haniyeh has fallen on deaf ears.

By refusing to properly use its authority to prosecute war crimes by Palestinian leaders, while actively pursuing Israeli leaders outside of its jurisdiction, the ICC has applied a blatant double standard to the Jewish state. The only term which fittingly defines the singling out of, and applying a double standard to, the only Jewish state in the world is: anti-Semitism.

The anti-Semitic treatment of Israel by a UN-sanctioned body should not come as a surprise to anyone living in 2021. But it is a disgrace of epic proportions that a court of law specifically dedicated to prosecuting war crimes should be used as a weapon against Israel, in the hands of the PLO, which itself has a rich history of carrying out war crimes.