Israel is once again in the International Criminal Court (ICC) Prosecutor’s crosshairs.
This time the Prosecutor has asked one of the ICC’s Pre-Trial Chambers to confirm that she has jurisdiction to investigate and try Israeli leaders for so-called war crimes and crimes against humanity for defending Israeli citizens against unlawful terrorist attacks by Palestinians and for simply permitting Israelis to settle in a portion of Israel’s historic homeland, an area widely known today as the “West Bank” but known historically as Judea and Samaria.
Earlier this month, ACLJ Chief Counsel Jay Sekulow appeared before the ICC Appeals Chamber in The Hague, The Netherlands, to present oral arguments in defense of the interests of our U.S. military. He argued that the ICC Prosecutor has no lawful jurisdiction to investigate and try U.S. nationals who served in Afghanistan since the United States is not a State Party to the Rome Statute, the treaty that created the ICC.
Now, the Prosecutor is attempting to investigate and try Israeli nationals despite the fact that Israel is also not a State Party to the Rome Statute.
Both of these attempts are in direct violation of the customary international law principle that a State is not bound by the terms of a treaty to which it is not a party. Because neither the United States nor Israel has acceded to the Rome Statute, neither is lawfully bound by the terms of such treaty. Hence, the ICC Prosecutor and chambers of judges lack lawful authority over the nationals of either nation.
It is imperative that the ACLJ, acting through its European affiliate, the European Centre for Law and Justice (ECLJ), intervene in this matter. To sit idly by would suggest that the ICC does indeed have jurisdiction, but that is not the case—despite claims to the contrary by ICC proponents.
The ICC Prosecutor seems eager to proceed despite customary international law which precludes her from doing so. The ACLJ/ECLJ is one of the very few voices defending non-party States like the United States and Israel from the ICC Prosecutor’s rush to judgment.
Even as the Prosecutor and her assistants claim that their goal is to punish lawless acts, they seek to proceed using unlawful means. One does not enhance the Rule of Law by openly and notoriously violating unambiguous rules of customary international law. Instead of being a legitimate pursuer of justice, the Prosecutor has opted to use means, which, if approved by the Pre-Trial Chamber, will make the Prosecutor herself a lawbreaker.
We must intervene. We have to stand for the cause of justice. We have to stand for the Rule of Law. We have to resist lawlessness directed against our own people and against the people of our friend and ally Israel. We must act to rein in the rogue impulses of the ICC.
In the next few days, the ECLJ will file with the applicable ICC Pre-Trial Chamber a request for leave to file an amicus brief. In that brief, we will set forth in detail the reasons why the ICC Prosecutor’s request to investigate and try Israelis for war crimes and crimes against humanity is ill-considered and illegitimate and why it should be rejected.
The proponents of the ICC are currently directing their ire at both the United States and Israel because both countries refuse to participate in a court whose willingness to violate State sovereignty and customary international law is widely recognized. If the ICC can prevail over the United States and Israel, it can force its will on every other non-party State.
The stakes are high, and the time to resist is now. Both the United States and Israel are responding vigorously with principled non-cooperation.
If that doesn’t work, both countries may need to up the ante to protect their territories and nationals from the unlawful reach of international bureaucrats who will not allow inconvenient contrary law to stop their drive to create an international court despite the opposition of over one-third of the world’s countries representing two-thirds of the world’s population.
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