Whythe ICC/ICJ should be ignored.
https://www.theaustralian.com.au/commentary/icj-victim-of-judicial-romanticism-with-genocide-ruling/news-story/d08f5d180c64f6ddb9d4cc1fd897256a
ICJvictim of judicial romanticism with ‘genocide’ ruling
RameshThakur
Earlierthis year the International Court of Justice published legally bindingprovisional orders calling on Israel to prevent genocidal acts.
Althoughsome press reports led with headlines saying the court had rejected SouthAfrica’s call for an immediate ceasefire, its Foreign Ministry hailed the orderas “a decisive victory for the international rule of law”, as the court “hasdetermined that Israel’s actions in Gaza are plausibly genocidal and hasindicated provisional measures on that basis”.
Lawand politics are more intimately intertwined in world affairs than in nationalcourts. The 15 ICJ judges from as many countries are meant to represent theUN’s main regional groupings and the world’s principal legal systems.
Candidatesare nominated by their countries and must secure the backing of their regionalgrouping to enhance the chances of success, both of which immediately infusethe process with political calculations.
Thequality of legal training and acuity, and the distance or proximity of judgesfrom their respective national governments, are variable.
Thecourt’s orders on Israel are imbalanced in their impact on the principalbelligerents. Hamas, the belligerent that initiated this war with a maraudingseries of attacks on Israel of particularly repellent savagery, was not even aparty in the proceedings. Responding with suppressed fury to a patronisingcomment from Denmark’s ambassador to the US, Jesper Vahr, in December 2014,Caroline Glick of The Jerusalem Post said: “This is not a double standard. Thisis a singular standard for Israel.” In 2013, army chief General David Morrisontold Australian soldiers: “The standard you walk past is the standard youaccept”. The ICJ judges could be said to be holding Israel to a singular standardwhile they walk past with eyes averted to Hamas standards of behaviour.
Crucially,the legal definition of genocide stipulates that the acts must be committedwith the “intent to destroy, in whole or in part, a national, ethnical, racialor religious group”. Hamas’s charter, deeds and repeated promise prove theintention to genocide against Israel and Jews, and its actions demonstratecontempt for civilian life on either side of the border. South Africa failed todemonstrate that the acts allegedly committed by Israel were done with thenecessary genocidal intent.
Tothe contrary, Israel had provided ample evidence of many measures taken tominimise civilian casualties and suffering. I am yet to see anyone postulatethat Hamas and associated fighters are subject to any comparable normativerestraints, as the world saw only too graphically on 10/7.
Itis disingenuous of the ICJ to cite the extraordinarily high civilian casualtiesas the grounds for directing Israel to prevent genocidal acts. The court seemssimply to have disregarded the fact that the civilian toll in Gaza has been sohigh because of the deliberate use of civilians by Hamas as human shields. Andthe test of proportionality in military operations should not be made inrelation to absolute numbers but to the military objectives.
Applyinga diluted standard of the Genocide Convention instead of internationalhumanitarian law will only serve to contaminate the meaning of genocide,undermine the integrity of the convention and invite all terrorist groups andinsurgency movements to mimic Hamas’s tactics of provoking military retaliationagainst human and material targets embedded deep among civilian populations andinfrastructure, and complicate all legitimate wars of self-defence against armedattack.
Thecourt has fallen victim to judicial romanticism, whereby lawfare is waged bysocial justice and environmental activists in the naive belief that courts arethe best venue for resolving disputes that are fundamentally political, socialand economic.
Theheart of the Israeli-Palestinian dispute is not a legal one “susceptible ofjudicial settlement by the court”, noted dissenting Ugandan judge JuliaSebutinde. The core issues that sustain the conflict include Israel’s right toexist, the Israeli occupation of land conquered in wars, the fate ofPalestinian refugees, of Jewish settlements in occupied West Bank, the statusof Jerusalem and a state of Palestine. Not surprisingly, the most credibleattempts at peace in the Middle East have generally been a result of politicalnegotiations and not judicial recourse, for example with the Oslo and CampDavid accords in 1993 and 2000.
Israelis engaged in an existential war against an enemy that is committed toexterminating it, and expelling all Jews from the region. October 7 was a starkdemonstration of the will to commit genocide and commit mass rapes as a weaponof war. Hamas spokesmen have insisted the attacks will be repeated “again andagain” until the twin goals are achieved.
Yetthe world court wants to hold Israel to the singular standard of the GenocideConvention, Gulliverise its campaign to destroy Hamas as a fighting, terroristand political force and then deradicalise Gaza in order to contain the threatof another genocide.
Tobe sure, the court also called for the “immediate and unconditional release” ofall hostages. Even so, the demand on Israel to go easy, lest too many civiliansare harmed, is not made contingent on the hostages’ release. Ending the warbefore the decisive defeat of Hamas rule in Gaza would expose Israel to serialrepetitions of October 7. No legitimate state can tolerate this and nor shouldit be pressured to do so. This is a political-cum-military strategic policydecision, not a judicial ruling.
Rememberhow Cardinal George Pell was convicted in one court and the verdict upheld in a2-1 split decision by the Victoria Court of Appeal but unanimously overturnedby the High Court? The ICJ is both the first and the final court ininternational disputes. There is neither a legal appeal from its judgment norany political check on it, no opportunity to reverse the provisionalmiscarriage of justice.
The15 majority judges have contributed to normalising the Hamas standard of massatrocities, encouraged future bad-faith abuses of international judicialprocesses by politically motivated governments and provisionally stigmatisedIsrael’s anti-Hamas operations in Gaza. Should the court return a final verdictof not guilty after years of litigation, it will be too late to repair thedamage to Israel’s international reputation.
RameshThakur is emeritus professor at the ANU. He was chair of the United Nationsuniversity’s appointment committee from 1998 to 2007. He is aformerAssistant Secretary-General of the United Nations.
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https://www.theaustralian.com.au/commentary/why-iccs-ingrained-bias-ensures-no-fair-trials-for-israel/news-story/794698155859520711b02df7f3eceada
WhyICC’s ingrained bias ensures no fair ‘trials’ for Israel
GregRose
Therequest for an arrest warrant against Benjamin Netanyahu and his DefenceMinister, made by the International Criminal Court’s chief prosecutor, isunsurprising, but not for the reasons many might think.
Anintegral purpose of the ICC’s political project has always been to delegitimiseIsrael. A target was drawn on Israel in the 1990s during the drafting of theRome Statute 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.
FinanceEntrepreneur Dr Roger Gewolb says he is “very disappointed" by PrimeMinister Anthony Albanese over his response to the ICC warrants. ThisInternational Criminal Court has issued warrants to two top Israeli officialsas well as three Hamas leaders. “He won’t protest the ICC More
TheOIC required that the ICC definition of forced transfer of civilian populationsbe expanded 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.
Thiscrime of allowing Jews to live voluntarily in the West Bank and Jerusalem hasbeen under 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.
TheICC is an effective tool to delegitimise Israel only if actively used by ICCstaff. This brings into focus the role and politics of its chief prosecutors.Karim Khan, 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.
Theprevious chief prosecutor, Fatou Bensouda, had been legal adviser andattorney-general in her home country, **on, under the dictatorship of YahyahJammeh, overseeing disappearances, political prosecutions and torture.Questionable dealings ran in the family, with her husband a bulk oil dealer inNorth Africa and her son a drug trafficker in the US.
TheICC is an effective tool to delegitimise Israel only if actively used by ICCstaff. This brings into focus the role and politics of its chief prosecutors.| Like dodgy police setting up false evidence for prosecution of atrafficker fallen from their favour, the ICC prosecutors set up dubious chargesagainst Israel. These are based largely on evidence assembled by anti-IsraelNGOs who solicit Palestinian testimony that is partial and prejudicial. Theprosecutors then put forward questionable interpretations of international lawrules that novelly apply 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.
Thenetworks of such prejudicial influence extend well beyond the ICC into otherlegal institutions. 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.
Egyptianand Jordanian judges in the ICJ were similarly pleased to execute judgmentsagainst Israel, despite their obvious bias from previous high-level nationalpolitical roles.
Althougha principle 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.
GregRose is a professor of law at the University of Wollongong, a senior fellow ofThe Hague Initiative for International Cooperation and a visiting fellow atAIJAC.
