Defending Israel, Combating Lawfare, and Taking Action at the ICC

Things are heating up on the “lawfare” front again as another effort to attack Israel on the world stage takes shape. On Friday, we took direct action in defense of Israel by sending a legal letter to the International Criminal Court – where ACLJ Chief Counsel Jay Sekulow has previously presented oral arguments before the Prosecutor.

As you may recall, “lawfare” is the use of law by the unscrupulous as a weapon against those who value the rule of law and seek to conform their conduct to its principles and requirements. Professor Susan W. Tiefenbrun defines lawfare this way: “‘Lawfare’ is a weapon designed to destroy the enemy by using, misusing, and abusing the legal system and the media in order to raise a public outcry against that enemy.”

Israel is one of those Nations that values the rule of law and takes giant strides to comply with it at all times, even when it is not convenient to do so. Israel is also one of those Nations that is continually attacked by those who use the law as a weapon.

Hamas and its Islamist allies in the Gaza Strip, for example, loudly condemn Israeli military strikes that inadvertently kill civilians even as the Islamists intentionally place their own civilian population at risk by locating legitimate military targets in the middle of civilian areas, all in violation of their reciprocal responsibilities under the Law of Armed Conflict (LOAC).

Professor Geoffrey Corn, a well-known expert on the LOAC, recently condemned Hamas’s “cynical use of civilians as human shields as a political and diplomatic weapon” to attack Israel. He also acknowledged Israel’s challenge in having to deal with an “enemy who views [Israel’s] compliance with the law, or [its] commitment to comply with the law, as a tactical and strategic enabler for its own objectives.”

Once civilians are inadvertently killed (something that the LOAC acknowledges can happen during an armed conflict and something that doesn’t automatically mean that a “war crime” has been committed), Hamas and its allies around the world seek to capitalize on what occurred by filing lawsuits alleging all sorts of criminal conduct by Israel. This is part and parcel of an international campaign to delegitimize Israel on the world scene. It is also a prime example of “lawfare.”

One of the most active lawfare battlefields today is at the International Criminal Court (ICC) in The Hague. Anti-Israel zealots of all stripes are trying to pressure the ICC Prosecutor to investigate and try Israeli soldiers and political leaders for all sorts of alleged violations of the LOAC and international human rights law. And Israel stands virtually alone against such an onslaught.

What is especially troubling to us at the ACLJ and our international affiliate, the European Centre for Law and Justice (ECLJ), is that, under customary international law, the ICC lacks jurisdiction over Israel and its nationals, since Israel has neither acceded to the Rome Statute (the Treaty that established the ICC) nor otherwise consented to ICC jurisdiction. There is a well-established principle in customary international law that governs such a situation: “A treaty does not create either obligations or rights for a third State without its consent.”

Yet, the Rome Statute contains a provision that purports to grant the ICC jurisdiction over the nationals of non-consenting, non-member States like Israel in direct violation of customary international law.

We have recently raised that issue directly with the Prosecutor (see our letter). We contend that the Prosecutor, as an Officer of the Court, must always determine at the outset of every investigation that she in fact possesses the authority (i.e., the jurisdiction) to pursue both an investigation and, if the facts so support, a trial of those who are thought to have committed the crimes. We argue that the provision in the Rome Statute that grants the ICC jurisdiction over nationals of non-consenting, non-member States directly violates a well-established provision of customary international law and is, therefore, totally void with respect to non-consenting States and their nationals (like both Israel and the United States).

In short, we argue that investigating and charging Israel with false war crimes for defending its own citizens against terrorism would in fact be a violation of international law itself.

This fight promises to be a long one. Each time we stand for Israel against lawfare and its malicious advocates, we not only protect Israeli soldiers and leaders, we protect U.S. soldiers and leaders as well (since the U.S. is also a target of lawfare advocates). This is a cause well worth fighting for.

Each battle we win protects not only Israel but also our own forces from those who seek to put us under the control of international institutions and an international bureaucracy.

We will continue aggressively fighting to defend Israel’s right to self-defense through a comprehensive legal strategy that we will continue to execute over the coming weeks and months. We will keep you informed as it develops and let you know how you can take direct action with us to defend our ally Israel.