A flawed ICC

The International Criminal Court has proved yet again not only that it is hopelessly ineffectual, but that it is run by people who lack context and tend to do more harm than good, despite all their lofty intentions.

On Sunday, the day after Syrian President Bashar Assad reportedly deployed chemical weapons against innocent civilians, including little children, ICC Chief Prosecutor Fatou Bensouda found the time to issue a statement warning Israel, of all countries, that its attempts to defend itself by preventing tens of thousands of Gazans – including many who were armed Hamas terrorists – from rushing its border with the Hamas-controlled Gaza Strip might constitute war crimes.

Inexplicably, the ICC and its legal bureaucrats throw legal formalism by the wayside in the name of the higher goal of bashing Israel, while they hide behind legal formalism when questioned about their silence on the atrocities being committed by the Assad regime or by other autocrats and strongmen.

That Israel is not a signatory of the ICC’s 1998 Rome Statute and therefore not under the ICC’s jurisdiction has been conveniently ignored by the ICC, which opened investigations into the 2014 Operation Protective Edge. But when the ICC is taken to task for failing to act against Syria or rogue leaders of other countries, it absolves itself by sighting its lack of jurisdiction.

UN Secretary-General Antonio Guterres’s repeated attempts, together with dozens of other UN member states, to get the UN Security Council to refer the Syrian conflict to the ICC have been cynically blocked by Russia and China, permanent members of the UNSC. Meanwhile, the ICC finds ways to single out Israel for investigation and criticism.

That the Palestinians cannot be a signatory to the Rome Statute because, according to ICC rules, only states can be signatories and Palestinians do not have statehood – as they constantly remind the world – has also been excused by the ICC, and the Palestinians were granted membership in 2015.

The ICC even ignores the fact that the Gaza Strip is run by Hamas – defined as a terrorist organization by the European Union, the US, Egypt, Jordan and other countries – and is not the formal representative of the Palestinian people.

The ICC and its legal bureaucrats also ignore the glaring fact that in a conflict between Israel – a democracy with a strong and activist legal system that has intervened at times to deem certain military actions illegal – and Hamas, a terrorist organization, one party will be willing to bully witnesses and undermine legal process, while the other side will worry about the technicalities and work in complete transparency. (We will leave it up to the readers to guess which is which.)

Parenthetically, because the IDF – a people’s army that has in its ranks a broad range of soldiers from different political backgrounds – conducts its own investigations into all allegations of war crimes, which are monitored by the attorney-general, the state comptroller and the High Court, the ICC is technically not allowed, according to its own rules, to conduct its own investigation. But then why should a court of law bother with rules and regulations?

The ICC, like most of the world, ignores the entire context of the conflict between Israel and the Hamas-controlled Gaza Strip. The terrorist organization, which violently wrested control over the Strip in 2007, two years after Israel evacuated and demolished all Jewish settlements and pulled out all IDF troops, has utterly failed to care for about 1.7 million Palestinians.

Not only is Hamas deemed an enemy by Israel and Egypt, it cannot even get along with the Fatah-led leadership on the West Bank. Hamas applies all its energies and resources to preparing for another failed military campaign against Israel.

The results of Hamas’s failed leadership are tragically evident: paralyzing electricity shortages; a lack of potable water; skyrocketing unemployment. Hamas’s answer: It diverts attention from its own failures by encouraging – or forcing – tens of thousands to rush Israel’s border, and then waits for the casualties to rise and the world to condemn Israel.

The ICC has fallen into Hamas’s trap, and we can only wonder about its true motivations.