In 2016, the Inter­na­tion­al Criminal Court (ICC) was facing a crisis. The African Union which is made up of 55 African states had voted by a huge margin for a mass with­draw­al from the ICC amid com­plaints that since its formation in 2002, the Court had only pursued cases con­cern­ing alleged war crimes in Africa. Indeed, questions about the necessity of a permanent Court as opposed to the ad hoc inter­na­tion­al tribunals estab­lished to prosecute war crimes in Rwanda and Yugoslavia, had become increas­ingly difficult to fend off given that in its first ten years, the ICC had spent nearly $1 billion USD and employed over 700 staff and delivered a single trial, that of Congolese militia leader, Thomas Lubanga.

The ICC had also failed to recruit global powers to the Court, limiting its prestige. Russia, China and India never signed the Rome Statute, the treaty which estab­lished the ICC. The United States under Bill Clinton did sign, but with a major caveat. President Clinton observed that while the legacy of the Nuremburg Trials neces­sit­ated col­lect­ive judicial action to bring war criminals to justice, the treaty, observed President Clinton, had “sig­ni­fic­ant flaws” allowing the Court to “claim jur­is­dic­tion over personnel of states that have not ratified the treaty.”

President Clinton warned of the pos­sib­il­ity that US officials would face “unfounded charges” and that the Court was sus­cept­ible to “politi­cised pro­sec­u­tions”. On the basis of these unre­solved concerns, the treaty was never presented to the Congress for rat­i­fic­a­tion and sub­sequent US Pres­id­ents main­tained the US position of not joining the Court or accepting its jur­is­dic­tion.

Clinton had feared that rather than the blind pursuit of justice, the ICC would go the way of other key inter­na­tion­al organs like the UN General Assembly and Human Rights Council, which not­with­stand­ing the finest of motives and founding inten­tions, had become tools of Cold War era collusion and political point-scoring.

The mandate of the ICC was always intended to be narrow. Generally, its jur­is­dic­tion is triggered when a matter is referred to it by the UN Security Council or when alleged genocide, crimes against humanity, war crimes or crimes of aggres­sion occur on the territory of an ICC member state or when a citizen of a state that is party to the ICC is accused of such a crime. The ICC was conceived as a tribunal of last resort to be used only when the country having jur­is­dic­tion over an alleged inter­na­tion­al crime cannot or will not deal with the matter.

Kenneth Roth, the Executive Director of Human Rights Watch, a con­sist­ent supporter of the Court, described the Court as “a last resort for victims and survivors who cannot find justice in their own country … [because of] ruthless national leaders that threaten, corrupt, or com­prom­ise judges and pro­sec­utors at home.”

Affirming the limited scope of the ICC, its first Chief Pro­sec­utor, Luis Moreno-Ocampo asserted that “whenever there is genuine State action, the Court cannot and will not intervene … and that States bear the primary respons­ib­il­ity for invest­ig­at­ing and pro­sec­ut­ing war crimes, con­sist­ent with inter­na­tion­al law.”

Ocampo’s remarks were intended to assuage growing fears among western nations that the Court would even­tu­ally mali­ciously pursue leaders who were demo­crat­ic­ally elected, account­able and scru­tin­ised by inde­pend­ent justice systems.

A year earlier, in a direct challenge to the ICC and amid growing fears that US political leaders and ex-ser­vice­men and women could face arrest abroad, President Clinton’s successor George W. Bush signed the American Service-Members’ Pro­tec­tion Act into law, which author­ised the President to use “all means necessary and appro­pri­ate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the Inter­na­tion­al Criminal Court”.

The Court’s decision to pursue Israel is precisely the sort of betrayal of the ICC’s mandate that President Clinton and his suc­cessors foresaw, and it will have implic­a­tions far beyond exposing Israeli citizens to arbitrary detention abroad. The poli­cy­makers and military personnel of all western countries engaged in coun­ter­insur­gen­cies and fighting pre­scribed terrorist organ­isa­tions will now be vul­ner­able to similar measures.

The recent pre-Trial Chamber decision focused on pre­lim­in­ary questions of jur­is­dic­tion that have split legal opinion, including among the judges of the pre-Trial Chamber itself. Putting the fun­da­ment­al issue of jur­is­dic­tion aside, there is no sub­stant­ive aspect of the Israeli-Palestini­an conflict that merits exam­in­a­tion by a court of last resort concerned with mass crimes.

Despite the intract­ab­il­ity of the Israeli-Palestini­an conflict and its capacity to produce bouts of violence and periodic wars, there are no credible alleg­a­tions of sys­tem­at­ic mass atro­cit­ies. Indeed, the combined Israeli and Palestini­an death totals, including civilian cas­u­al­ties, from the three Hamas-Israel wars fought in Gaza and southern Israel between 2008 and 2014, stands at roughly 3,500.

By contrast, around 100,000 have been killed in Yemen since 2014 and some 400,000 have died since the beginning of the Syrian Civil War. Conflicts in Africa have featured the raising of child armies, the anni­hil­a­tion of whole ethnic groups, mass rape as a weapon of war, and death tolls on a truly incom­pre­hens­ible level.

The current ICC Prosecutor’s pursuit of Israel would therefore sig­ni­fic­antly lower the Court’s gravity threshold (Art. 17) and violate its mandate to deal with “the most serious crimes of inter­na­tion­al concern” (Rome Statute preamble and Art. 1).

The focus on Israel also rep­res­ents a dis­card­ing of the “court of last resort” doctrine on which the ICC was founded.

Israel’s Military Advocate General (MAG) has wide powers of invest­ig­a­tion and pro­sec­u­tion which have been used to prosecute Israeli military personnel. After the 2014 Gaza conflict, the Israel Defence Force’s invest­ig­a­tions into some 360 alleged criminal incidents were reviewed by the MAG, and 24 of them were referred for criminal pro­sec­u­tion, leading to a number of con­vic­tions. Israel’s MAG is subject to the super­vis­ory jur­is­dic­tion of the Attorney General, which in turn is subject to rulings by Israel’s Supreme Court. Critics of Israeli rules of engage­ment in Gaza or of security decisions such as retributive house demoli­tions in the West Bank or the route of Israel’s security barrier have virtually unfettered access to Israel’s legal system. Suc­cess­ful cases are regularly brought before Israel’s Supreme Court not only by Israeli citizens but also by Palestini­ans living in the West Bank, NGO’s and human rights organ­isa­tions. This record is incom­pat­ible with any sug­ges­tion that Israel’s accusers have no recourse other than the ICC.

Israel is far from alone in express­ing concerns about the ICC. In a bipar­tis­an letter signed in May last year by 67 US Senators, including now-Vice President Kamala Harris, the sig­nat­or­ies warned that the Court’s intended pro­sec­u­tion of Israel “con­sti­tutes a dangerous politi­cisa­tion of the Court and distorts the Court’s purposes … as a court of last resort.” The letter further noted that the Court “does not enjoy legit­im­ate jur­is­dic­tion in this case” and that the decision to prosecute Israel violates the Court’s own rules against “pro­sec­ut­ing cases against a country that has a robust judicial system willing and able to prosecute war crimes of its personnel.”

The Court’s invest­ig­a­tion of Israelis will bring further pun­ish­ment by process, asso­ci­at­ing Israel with accus­a­tions of war crimes whether or not such accus­a­tions have any basis in fact.

Following the “Jenin Massacre” libel in 2002, when Palestini­an officials accused Israel of killing “more than five hundred people” in mass graves, com­mit­ting “genocide” and “body snatching”, per­sist­ent media coverage, com­ple­ment­ary NGO reports and par­lia­ment­ary speeches seared into the public con­scious­ness a per­cep­tion of Israel as criminal, ille­git­im­ate and uniquely deserving of pun­ish­ment. Rather than serving the interests of justice, this only advanced the decidedly political motive of hardening public and policy-making opinion against Israel and building sympathy for the Palestini­ans.

Ulti­mately, the UN and the Palestini­ans them­selves conceded that the true death toll in Jenin had been fifty-two Palestini­ans, virtually all com­batants, along with twenty-three Israeli soldiers who had engaged in street-to-street combat to minimise the civilian cas­u­al­ties that would have even­tu­ated from the use of artillery or airpower. The alleg­a­tions of genocide, mass graves and body snatching had been complete fab­ric­a­tions.

Israelis believe that once the shroud of hyperbole and pro­pa­ganda is lifted, in any fair and open court, they would be absolved again. Whether the ICC is such a fair and open court is highly ques­tion­able. What is clear is that ICC’s invest­ig­a­tions will result in repu­ta­tion­al damage to Israel and impact the freedom of Israeli citizens to engage with the world. In a greater sense, the ICC has now placed itself in conflict with all western armies and political leaders and has chal­lenged the very notion of national sov­er­eignty. The cred­ib­il­ity of the ICC will suffer for it as will the genuine victims of mass atro­cit­ies the Court is meant to protect and serve.

Alex Ryvchin is the Co-Chief Executive Officer of the Executive Council of Aus­trali­an Jewry and is the author of “Zionism – The Concise History” (Connor Court, 2019) and “The Anti-Israel Agenda – Inside the Political War on the Jewish State” (Gefen Pub­lish­ing, 2017)