A Watershed in the Unraveling of the Post Second World War Global System
The ICC indictment of Israel's leaders will destroy the institutions that enabled it
Editors Note
An earlier version of this article incorrectly identified ICC Chief Prosecutor Ahmad Khan as Lebanese. In fact Khan is a British citizen. Canadian Zionist Forum regrets the error which has been corrected in the text below.
End of the Legitimacy of Multilateral Institutions
The unfair treatment of Israel in international bodies is nothing new. As long ago as the 1970’s, the UN General Assembly passed resolution 3379 declaring that Zionism is Racism. The resolution was repealed sixteen years later in General Assembly resolution 46/86, but the campaign to delegitimize Israel, Zionism and the Jewish claim to our homeland never went away.
Much ink has been spilled on the procedural unfairness of the UN Human Rights Council and its singular preoccupation with Israel in a world full of regimes that fail to protect the human rights of their citizens.
Image: Counting Resolutions passed by the UN Human Rights Council Since 2006 —————-Source: Jewish Virtual Libary
The complicity of UN bodies like UNRWA and UNIFIL in terrorism against Israelis, to which the world has turned a blind eye for decades has been on full display during the current war, but nobody who has been paying attention should have been unaware that these bodies were long ago highjacked to serve ends that are contrary to the charter of the United Nations. Einat Wilf and Adi Schwartz have documented the key role UNRWA has played in perpetuating the genocidal seventy seven year Palestinian war against Israel in their essential book, “War of Return”.
Image: Cover of War of Return, which explains how UNRWA perpetuated the Israel Palestinian Conflict. ——————Source: Amazon
The complicity of UNIFIL in Hezbollah’s defiance of UN Resolutions and persistent terrorism against Israel was discussed in my recent article on the Second Lebanon War. You can read it by following the link below.
Israel and Lebanon: 77 Years of Conflict (Part 3)
In the second installment of our series on the history of Israel’s relations with Lebanon, we described events after the Lebanese Civil War in 1990 up until Israel’s withdrawal from Southern Lebanon in May of 2000.
The steady stream of antisemitic pronouncements from the UN Special Rapporteur, Francesca Albanese over the months since the beginning of the war should also have raised plenty of alarm bells, but as we wrote in our articles about the special rapporteurs over the years, the systematic corruption of the office has proceeded methodically along with the capture of the UN Human Rights Council by regimes that are in fact hostile to human rights.
International Courts Must be Seen to be Fair or they are Useless
In spite of the many other failures of the international system to provide fair treatment to Israel, the hijacking of the international courts is a much worse development.
The UN General Assembly can express its opinion, but its opinion does not carry the weight of international law. That power is vested in the UN Security Council, where the majority of members favoured Israel in its early years and where the veto power of the United States has protected Israel from the enforcement of unfair measures, in the decades since the international mob has turned against it.
International law rests on treaties, including the UN charter. International courts operate within the framework of the treaties that established them. If they operate outside that framework, they are acting lawlessly and become the enemy justice rather than its enforcer.
The international courts are thus constrained by the rules that created them, but like courts elsewhere, there is no recourse within the system if the courts ignore their own rules and act lawlessly, or grab power that was not assigned to them. The respect accorded to courts is an important part of the rule of law, but when courts themselves become lawless, they become a menace and do not deserve respect.
In the case of the International Criminal Court, safeguards were put in place to prevent it from intruding on the sovereignty of the member states of the UN which created it. The first safeguard is that countries have to opt into its jurisdiction by ratifying the treaty that created it. Countries that haven’t ratified the treaty are supposed to be outside its scope. Israel has not ratified the Rome treaty, precisely because it was not confident that it would be treated fairly in an international body dominated by its enemies.
Secondly, the court is only supposed to take action if domestic courts are not able or willing to address criminal conduct. Israel has robust courts which can and have tried Israelis for war crimes in the past. The ICC decision ignores this and in fact no effort seems to have been made to bring charges in Israel.
The ICC is a creature of the UN. Its assumption of jurisdiction in the case brought against Israel’s leaders relies on at least three violations of UN rules. To get around the fact that Israel did not ratify the treaty, the ICC accepted jurisdiction over the “State of Palestine”, although Palestine does not meet the criteria for a state.
In order to be a state, there must be a recognized territory. Palestine does not have a recognized territory. Palestine claims certain territory, but those claims are disputed by Israel. Palestine has never been a sovereign state and has never exercised sovereignty over any of the territory it claims. In spite of this, the UN general assembly recognized Palestine as a state and admitted it as a non-voting member. This is in fact beyond the powers of the General Assembly. Only the Security Council can admit new members to the UN. This is a violation of UN rules on which the ICC decision rests.
This means that, even if Israel’s leaders were guilty of the crimes for which they have been indicted, the ICC has no power to bring them to trial.
The prosecutor at the ICC is Karim Ahmad Khan. Khan was born and educated in the United Kingdom. Khan has worked for the International Criminal Court for a number of years, issuing arrest warrants for Russian President Vladimir Putin for war crimes in Ukraine. Khan was elected chief prosecutor of the court in 2021.
Khan has reportedly been accused of sexual misconduct by a staffer at the court, but no formal complaint was laid, allegedly because the victim did not trust the internal disciplinary process at the court. Khan has been criticized for what appears to be a rush to judgment in the case of Israeli leaders and a failure to examine whether Israeli institutions are playing their assigned role in preventing and prosecuting human rights abuses. He has worked closely with the illegitimate Maduro regime in Venezuela, giving credence to their far fetched claims that human rights abuses in there are prosecuted by local courts. In contrast, Khan cancelled a planned visit to Israel to meet with Israeli leaders, shortly before issuing his request for the warrants against Netanyahu and Gallant.
Image: ICC Chief Prosecutor Karim Ahmed Khan ——————-Source: ICC Website
The Charges are Based on Propaganda, Not Evidence
Now those who have followed the events of the war will know that the claim that Israel is deliberately starving people in Gaza is a propaganda claim of Hamas, not an established fact. On the contrary, aid has poured into Gaza in large quantities throughout the war and Israel has lost the lives of its soldiers trying to distribute it. In areas still controlled by Hamas, aid has been looted and then sold back to the desperate people of Gaza to pay for their crimes against Gaza and Israel.
It should be noted that the predecessor of the current ICC prosecutor was asked repeatedly to investigate Israel for war crimes based on the events in the Gaza conflict of 2014. She repeatedly declined to bring charges, a decision which was never accepted by the politicized, institutionally anti-Israeli body which governs the court.
Happily, unlike the craven leaders of France and the Netherlands, the Biden Administration has already indicated that it “fundamentally rejects” the decision to indict Netanyahu and Gallant. We can only hope that a similar position will be taken by the Canadian government.
People who are aware of the profound unfairness of the process leading to the indictments should recognize that it is not only Israel which is at risk if the Court is accepted as a legitimate arbiter of international law. Any nation that runs afoul of the majority that controls the court is at risk of similar arbitrary treatment. No nation is safe.
The only remedy for this miscarriage of justice is the defunding and disestablishment of the court. Members who have ratified the Rome treaty should rescind their submission to the ICC jurisdiction. There is no way to salvage this court. Its existence makes a mockery of the idea of the rule of law. Happily, members of the US Congress have already threatened sanctions on the court should they do what they did today.
The actions of the ICC should be the final nail in the coffin of the court itself, of the General Assembly which enabled the miscarriage of justice by recognizing the nonexistent State of Palestine, and of the whole rotten UN system, which is riddled with anti-Israel and anti-western animus throughout. We must begin again to build an international system that will not trample on the sovereignty of democratic states at the behest of international organized crime.
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How well said!
Unfortunately as Im sure you know by now your government has promised to enforce the arrest warrants. As have the governments of The Netherlands and France. I believe Britain too. As for the Biden administration which means the Democrats you can tell even in Biden's weasley words that if Harris had been elected NOTHING would happen to the ICC. Trump had imposed sanctions on it which Biden immediately rescinded. So even though the US does not belong to it, the Democrats would and will do NOTHING about this outrageous except whine. I trust that under a Republican Congress and White House serious action will be taken. This not only includes sanctions against the ICC and its employees. It should include sanctions against any nations that carry out it's evil designs even if those countries are NATO members. And frankly the US should demand the entire thing be shut down and should use all its leverage to do it. Sanctions can be too easily lifted when the Democrats take over again as they inevitably will. Like Jackson did with the United States Bank, it should be the goal of the GOP to kill the ICC dead. And while we are at it major and total reform of the grotesque UN of which my country pays a full 24 percent of its funding, should be a major policy undertaking of the next Congress and administration. Enough is enough.