(February 9, 2021 / JNS) It’s hard to shake the impression that the majority ruling by the International Criminal Court is, essentially, a political document, entirely detached from international law. The judges who voted in the majority, two of them from countries that aren’t particularly pro-Israel in terms of the Israeli-Palestinian conflict, decided to unburden themselves from the shackles of legal analysis and performed technical acrobatics based on U.N. General Assembly resolutions that lack any legal validity.
It’s enough to read the minority opinion of the Hungarian judge to appreciate the absurdity of the majority decision.
One also needn’t be a legal scholar to understand that, according to all parameters of international law, one cannot accept the notion that a sovereign Palestinian state, with a government that rules over the territory that the ICC has arbitrarily granted it, exists in Judea and Samaria and eastern Jerusalem; a state that can even sign international agreements and delegate legal authorities to the very international court that has no such authority.
The ruling also proves just how preposterous it is to let two random jurists determine such a controversial issue, particularly in light of international consensus, which includes Arab countries, that the conflict needs to be resolved through negotiations.
It runs contrary to the principles of international law and the U.N. Charter for international bodies to force solutions to conflicts without the agreement of the warring sides. Conflicts and wars end when one of the sides either emerges victorious or through negotiations between them.
The peace treaty in the Balkans in the 1990s was forged after talks that culminated in the Dayton Accords. Had Serbian leader Slobodan Milosevic been put on trial before the sides signed the treaty, the war could perhaps have gone on for many more years. At the Nuremberg trials, similar to the trials pertaining to the war in former Yugoslavia, infamous war criminals were tried. Those legal proceedings didn’t involve creating states or drawing borders.
The State of Israel is a country bound by rule of law, with independent civilian and military justice systems. The ICC’s interference in the process of judging Israeli citizens is a severe infringement on Israeli sovereignty. Israel did not sign the Rome Statute upon which the ICC was founded, and the attempt to force it on Israel, via a legal construct utterly lacking in legal logic or basis, is destined to fail.
War and peace are part of the human experience. The ICC judges are not supposed to determine the fate of international conflicts, draw borders that aren’t agreed upon by the sides and recognize the legal existence of states. Irresponsible decisions of this sort could trigger more wars in combustible regions such as the Middle East.
Dr. Ron Soffer is a member of the Bar Association of Israel, Paris and New York, and is authorized to appear before the International Criminal Court in The Hague.
This article first appeared in Israel Hayom.
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