NY Daily News - Stop the World Court From Hauling Israelis Off to the Hague
August 20, 2009
By Jay Sekulow and Brett Joshpe
Israel's supporters, beware. The Jewish state's adversaries have been lobbying the International Criminal Court to assert jurisdiction over Israelis - and prosecute them for war crimes - for events that occurred during the December 2008-January 2009 war in Gaza, Operation Cast Lead.
The especially depressing part is this: The Obama administration has done nothing publicly to discourage the prospect. In fact, Secretary of State Clinton recently expressed "great regret" that the U.S. is not a member of the court, even as it considers this outrageous prosecution.
The administration had better wake up to this threat, and quickly. Should the campaign to prosecute Israelis for acting in self-defense prove successful, it will undermine what legitimacy the court currently has, register as a major victory for those who want to weaken Israel and set a horrible precedent for all nations fighting to stop terrorists from doing their worst.
Israel, as many know, launched Operation Cast Lead because of persistent Hamas terrorist and rocket attacks. During the military action, Israel painstakingly sought to avoid civilian casualties - dropping millions of leaflet warnings, making phone calls to residents and employing a "knock-on-the-roof" warning prior to striking military targets that might house civilians. Nonetheless, given the terrorists' propensity to use civilians as human shields and operate from residential neighborhoods, tragedies occurred.
Now, Israel's antagonists are seeking revenge in the courts.
Amnesty International and Human Rights Watch have published multiple reports accusing Israelis of committing war crimes and crimes against humanity.
The Arab League has gotten in on the action as well, sending the court its first-ever fact-finding report on alleged Israeli crimes. While the report claims to be independent and objective, it consistently refers to the Israeli "offensive" and says of Hamas terrorists, "There are a number of factors that reduce their moral blameworthiness," such as the fact that "Palestinians have been denied their right to self-determination by Israel and have long been subjected to a cruel siege by Israel."
The report concludes that the results of an internal Israel Defense Forces investigation into allegations of Israeli war crimes are "unconvincing" because Palestinian sources were not considered and the "IDF investigation was conducted for a number of days only." (Meanwhile, the Arab League report was based upon a five-day investigation without any discussions with the Israeli government, and internal Israeli investigations remain ongoing.)
The anti-Israel drumbeat is steady and getting louder. Before long, the International Criminal Court could very well drag Israelis into The Hague and put them on trial for defending themselves from terrorists.
If that isn't turning the world upside down, what is?
There's just one hitch - or at least there ought to be, if court officials care to obey the rules. The Rome Statute establishing the International Criminal Court limits access to actual states. Meaning, the government of Palestine doesn't have standing to make this claim.
But that may not stop the court.
Luis Moreno-Ocampo, who serves as its chief prosecutor and earlier this year said that the court does not have jurisdiction in Gaza because of Palestine's nonstate status, seems to be buckling to the growing pressure.
Last month, Moreno-Ocampo wrote an Op-Ed boasting that "the Palestinian National Authority accepted the jurisdiction of the court," clearly laying the groundwork for a possible investigation.
So, brace yourselves. Those who have waged war against Israel using suicide bombers and rockets may have found themselves a new battlefield: The International Criminal Court. Unless, that is, someone has the guts to stand in their way.
Sekulow is a constitutional litigator and chief counsel for the American Center for Law and Justice in Washington. Joshpe is an attorney and author in New York City.