The ICC should investigate actual war crimes

Israel’s enemies are constantly working to kill more civilians, to hit more schools, hospitals and homes with rockets. These are the real war crimes the International Criminal Court should “examine in Palestine.”

International Criminal Court chief prosecutor Fatou Bensouda speaks at the Oslo Forum in 2014. Photo: Stine Merethe Eid via Wikimedia Commons.
International Criminal Court chief prosecutor Fatou Bensouda speaks at the Oslo Forum in 2014. Photo: Stine Merethe Eid via Wikimedia Commons.
Benjamin Weil
Benjamin Weil

If someone asked you what the world’s most serious human-rights issues are today, what would your answer be?

If you’re like me, your answer would probably be the plight of the Kurds and Yazidis, the oppression of the Iranian people, and the horrible human-rights violations in North Korea. On the other hand, if your name is Fatou Bensouda and you happen to be the International Criminal Court prosecutor, clearly all of those issues are secondary. How else can one explain Bensouda’s statement from Dec. 19, 2019, that the ICC would “examine the situation in Palestine” and not any of the actual massacres going on around the world?

Let me save the ICC and Bensouda some time, so they can focus on the systematic war crimes, genocide and crimes against humanity going on around the world: You have neither the jurisdiction nor the authority to try any Israeli. I would refer Bensouda to the bylaws of the organization she works for.

The prosecutor’s concerns were about “crimes” the Israel Defense Forces allegedly committed while preventing innocent people from being harmed by terrorists, while simultaneously working hard to minimize, to the best of their ability, any loss of life or damage. Article 31 (c) of the Rome Statute of the International Criminal Court, the treaty the ICC draws its power from, states that if a person acts reasonably against an imminent and unlawful use of force, with the aim of defending their own life or that of another person, that person is exempt from ICC investigation.

There’s a simple way to check whether the IDF acted reasonably—let’s look at how other militaries operate in the face of similar threats. At a U.N. Watch protest rally in front of Geneva’s Palais des Nations on March 18, 2019, former commander of British Forces in Afghanistan Col. Richard Kemp said the following of the IDF:

“They took every possible step to prevent losing lives of civilians on the other side. Every single thing you could do. I have served in this situation, I have commanded British troops facing rioting crowds with terrorists in among them armed with bombs and guns trying to kill my troops.

“I have been in that situation, and I thought to myself amidst all the criticism, ‘What could the IDF do more [that] it didn’t do? How could the IDF prevent the loss of life in Gaza while still protecting their own civilian population?’ And I can’t think of anything.

“I served in this kind of situation for 30 years—30 years, I cannot think of anything. But the geniuses inside this building, they say Israel should have done it differently. But none of them can tell you how Israel could have done it differently. Nobody can tell you how Israel could have done it differently.”

Israel, like any other country, is not perfect, and makes mistakes. It has made mistakes and will continue to make mistakes. However, Israel and its military continuously try to minimize casualties and damage by learning from their mistakes and investigating any failure. Israel’s judicial system holds wrongdoers accountable for their crimes and investigates any accusation of criminal activity by the Israeli government and military.

To return to my original question, I would add another more answer: The targeting of civilian populations, use of innocents as shields and hiding of explosives and weapons in schools. These are all war crimes and human-rights issues that greatly concern me. While Israel views the killing of innocents as a failure to be avoided at all costs, its terrorist enemies are constantly working to kill more civilians, improve the range of their rockets so that they can hit more schools, hospitals and homes. These are the real war crimes Bensouda should “examine in Palestine.”

Benjamin Weil is director of the Project for Israel’s National Security for the Endowment for Middle East Truth (EMET), a pro-Israel and pro-American think tank and policy institute in Washington, D.C. He formerly served as the international adviser to Yuval Steinitz, a member of Israel’s Security Cabinet.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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