Israel vs. the International Criminal Court

The End of the Right of Self-Defense? Andrew C. McCarthy, Commentary. If it gains currency, a ruling by the International Court of Justice will impair not only Israel’s power to protect itself but the American war on terror, and place in question the future of international law. (2004, PDF)

By Anne Herzberg, JEWISH IDEAS DAILY

For more than six decades, Israel has been subjected to violence, warfare, and a relentless campaign of terror attacks deliberately targeting civilians. Today, these attacks are spearheaded by states, including Iran and Syria, and terror organizations like Hamas, Islamic Jihad, Hizballah, Fatah’s al-Aqsa Martyrs Brigades, the PFLP, and even al-Qaeda.

But that is not all. This “hard-power” war is bolstered by a corresponding “soft-power” war aimed at delegitimizing and demonizing the Jewish state. The latter campaign is led by nongovernmental organizations (NGOs) utilizing the rhetoric of international law and human rights. Their efforts are funded by the European Union, European governments, George Soros, the Ford Foundation, and others.

The strategy of exploiting legal processes to attack Israel’s legitimacy was developed at the 2001 UN World Conference against Racism in Durban, South Africa, whose final declaration called for the establishment of a “war-crimes tribunal” against Israel. Since then, NGOs have filed lawsuits throughout Europe and North America to have Israeli officials arrested and imprisoned as “war criminals.” They were also heavily involved in the one-sided 2004 advisory opinion by the International Court of Justice (ICJ) that declared Israel’s security barrier to be “illegal.” The primary goals of all these cases are to play havoc with normal diplomatic relations and to criminalize all methods used by Israel to protect its citizens from attack.

The latest battleground in the political war is the International Criminal Court (ICC) in The Hague, Netherlands—established in the late 1990s as a court of last resort to punish the very worst cases of mass murder and torture. Israel was a strong backer of the ICC until it was co-opted by Arab and Islamic regimes, which succeeded in changing the Court’s statute to eliminate terrorism as an offense and, at the same time, to define Israeli settlement activity as an international crime. Israel then withdrew as a party to the Court, but the Arab League and prominent NGOs like Human Rights Watch (HRW) and Amnesty International have continued to bombard the tribunal with claims of alleged Israeli “war crimes” and have pressured ICC officials to arrest Israelis.

To bolster these efforts, the Palestinian Authority lodged a declaration purporting to make it, too, a party to the Court so that Israelis could be prosecuted for alleged crimes committed in “Palestine.” Instead of summarily rejecting the request as the ICC rules demand—there is no state of Palestine—the ICC prosecutor chose to conduct a highly unusual public campaign on the PA’s behalf. HRW, Amnesty, and several other NGOs have in turn strongly backed this campaign.

Regardless of the outcome of this particular initiative, the legal assault on Israel’s right of self-defense continues unabated. And Israel is not the only country in jeopardy; every Western government stands to have its efforts at combating terrorism placed under legal sanction. Some, like Spain and the UK, have become sufficiently alarmed to amend their laws in order to prevent future manipulation by NGOs. But where Israel is concerned, and given the disproportionate power held by Arab and Islamic regimes in international institutions, it appears that both the ICJ and the ICC will be increasingly exploited as instruments of attacks on the state’s legitimacy—and that NGOs will continue to play a central role in these campaigns.

Will governmental and institutional donors take steps to ensure that their funding of NGOs is used to enhance peace rather than incubating hostility and war? This a question to which, one hopes, informed citizens will find it urgently important to demand an answer.

Anne Herzberg is the legal adviser of NGO Monitor, a Jerusalem-based research institute. A second edition of her monograph, NGO “Lawfare”: Exploitation of Courts in the Arab-Israeli Conflict, has just been released.