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Greg Rose- May 24, 2024 – The Australian

Why ICC’singrained bias ensures no fair ‘trials’ for Israel

The requestfor an arrest warrant against Benjamin Netanyahu and his Defence Minister, madeby the International Criminal Court’s chief prosecutor, is unsurprising, butnot for the reasons many might think.

An integralpurpose of the ICC’s political project has always been to delegitimise Israel.A target was drawn on Israel in the 1990s during the drafting of the RomeStatute for the ICC. The Organisation for Islamic Cooperation made this acondition of participation by Muslim countries. With 57 members, the OIC is theworld’s biggest organisation by membership (other than the UN itself). Itsparticipation was necessary for the global criminal law project to proceed.

The OICrequired that the ICC definition of forced transfer of civilian populations beexpanded as a war crime. New language introduced into the Rome Statutecriminalised voluntary civilian migration of Jews into the areas of Jerusalem,Judea and Samaria now called the West Bank. Although the ICC statute codifiedother existing war crimes, this became a new retrospective war crime inventedin the Rome Statute.

This crimeof allowing Jews to live voluntarily in the West Bank and Jerusalem has beenunder examination in the ICC since 2014. The previous chief prosecutor, inclose liaison with Palestinian bodies and advisers from the OIC, geared theexamination up to a prosecutorial investigation in 2020.

The ICC isan effective tool to delegitimise Israel only if actively used by ICC staff.This brings into focus the role and politics of its chief prosecutors. KarimKhan, the current chief prosecutor, had as his mentor and godfather SirMuhammad Zafarullah Khan, Pakistan’s first foreign minister, who opposed theJewish state’s establishment and existence throughout his career, includingduring his presidency of the UN General Assembly. They corresponded every weekand stayed together when the elder Khan was in Britain. Khan describes theelder Khan’s influence as pivotal.

The previouschief prosecutor, Fatou Bensouda, had been legal adviser and attorney-generalin her home country, **on, under the dictatorship of Yahyah Jammeh, overseeingdisappearances, political prosecutions and torture. Questionable dealings ranin the family, with her husband a bulk oil dealer in North Africa and her son adrug trafficker in the US.

ICCprosecutor Khan pretends Israel must be held to account equally with others. |An integral purpose of the ICC’s political project has always been todelegitimise Israel. A target was drawn on Israel in the 1990s during thedrafting of the Rome Statute for the ICC. | Israel braces for ICC arrestwarrant for PM | The ICC is an effective tool to delegitimise Israel only ifactively used by ICC staff. This brings into focus the role and politics of itschief prosecutors. |

Like dodgypolice setting up false evidence for prosecution of a trafficker fallen fromtheir favour, the ICC prosecutors set up dubious charges against Israel. Theseare based largely on evidence assembled by anti-Israel NGOs who solicitPalestinian testimony that is partial and prejudicial. The prosecutors then putforward questionable interpretations of international law rules that novellyapply only to Israel.

Forinstance, a charge issued by Khan focused on alleging insufficient aid flowsinto Gaza, arguing this amounts to the war crime of using starvation as aweapon of war. But the ICC prosecutor ignored several of the most salientfacts, such as Hamas attacks on border crossings (thus interrupting aid flows),Hamas’s seizure of aid convoys and stealing of aid, and its booby-trappinghomes and its destruction of Gaza infrastructure, particularly water pipelinesand electricity transmission lines.

Khancontradicts the basic rules of international law of armed conflict allowingattacks on combatants by treating Hamas combatants embedded in urban areas ascivilians. He also invents a perverse rule requiring the direct provision ofhumanitarian aid to the enemy in armed conflict.

The networksof such prejudicial influence extend well beyond the ICC into other legalinstitutions. Sir Muhammad Zafarullah Khan was also a president of the UNInternational Court of Justice, just like the current president of the ICJ,Nawaf Salam. Judge Salam was the Lebanese ambassador to the UN, where he waswell known for constant invective against Israel. Unsurprisingly, he is notwithdrawing or recusing himself in the current cases against Israel.

Egyptian andJordanian judges in the ICJ were similarly pleased to execute judgments againstIsrael, despite their obvious bias from previous high-level national politicalroles.

Although aprinciple of the rule of law is that of the impartial judge, for which thedisqualifying threshold is a reasonable apprehension of bias, this fundamentalrule has no traction in the international justice system.ICC prosecutor Khanpretends Israel must be held to account equally with others. But the problem isnot a failure to hold Israel to account, it is a more fundamental failure totreat Israel equally under law. Just as Jews were once excluded from politesociety, and subjected to double standards, today Israel is treated as the Jewof the nations to be excluded from international society.

Theinternational legal system is politicised. It is a function of the UN, which inturn is a political institution dominated by non-democratic states. They driveforward their own narrow anti-Semitic interests with the cynical support ofhypocrites. Of course, the ICC charges are no surprise.

Greg Roseis a professor of law at the University of Wollongong, a senior fellow of TheHague Initiative for International Cooperation and a visiting fellow at AIJAC.