ICC Chamber Decision an Irreparable Stain on the Court

 Read full article by Alan Baker here

It is both tragic and ironic that the State of Israel, one of the founding fathers of the vision of creating an independent International Criminal Court after the unimaginable atrocities committed against the Jewish People during the Holocaust, has now become the target of that very International Criminal Court. It is all the more ironic that Israel now finds itself being accused by the Court based on Palestinian political manipulation.

The irony is all the more evident given the legal acrobatics by the politically oriented and politically influenced prosecutor of the Court and the majority of judges of the Pre-Trial Chamber in their obstinate and flawed insistence on attributing elements of statehood and sovereignty to a Palestinian entity that is distinctly, and by all international standards, not a state.

Nor does such entity have any sovereign territory, and thus, even according to the Statute of the ICC, cannot be the subject of the Court’s jurisdiction. This ironic situation is not surprising, given the prevailing international atmosphere of incitement and hostility toward Israel throughout the UN system.

However, what is shocking is the fact that the one international juridical institution that was hoped and intended by its founders, and stated in its founding document, to be “an independent, permanent International Criminal Court with jurisdiction over the most serious crimes of concern to the international community as a whole”, has allowed itself to be politically manipulated and abused.

The Court has irreparably prejudiced any juridical integrity, credibility and bona fides that it might have had. This decision by the Court’s Pre-Trial Chamber to accept the contention of the prosecutor, based purely on non-binding and non-authoritative political resolutions of the UN General Assembly, that the Court can exercise jurisdiction over disputed territory that is in the midst of an internationally recognized dispute-settlement process, defies all legal logic.

Since the ICC Statute is open to sovereign states only, and since no sovereign Palestinian state exists, and since there exists no Palestinian territory over which the Court could exercise its jurisdiction, the Pretrial Chamber, by any legal logic, should have rejected the contentions of the prosecutor, rather than attempt to prejudge and undermine the outcome of the negotiating process by determining that there exists sovereign Palestinian territory.

Sadly and regrettably, this decision not only irreparably harms the integrity and credibility of the ICC, and can undermine the Middle East peace negotiating process, since the Court, at the behest of its prosecutor, is attempting to prejudge the outcome of that process, contrary to all historic and legal logic.