This past Shabbat – the Shabbat before Purim – was Shabbat Zahor, during which we read from a Torah portion (for maftir) that commands the Children of Israel to remember what Amalek did:
“how he confronted you along the way, and smote the hindmost among you, all that were enfeebled, when you were faint and weary; and he did not fear God….you shall wipe out Amalek from under the heaven, you shall not forget.” (Devarim 25: 17-19)
Amalek is gone, but many others rise up in a spirit of destruction. We should never be deluded that it is otherwise.
Today, it’s not all about attacking from the rear (except figuratively). There are many ways that Israel’s enemies can attack, and we must be prepared on all fronts at the same time. While we ready ourselves for the possibility of war with Hezbollah (I will come to this on another day), we must also defend ourselves against “legal” (lawfare) and “diplomatic” attacks via various NGOs, agencies and institutions. The goal in the end is weakening the perceived legitimacy of Israel.
Among these NGOs (i.e. non-profits) are several registered in Israel. B’Tselem, an Israeli NGO that pushes its agenda under the guise of promoting “human rights,” is a prime example. Back in 2017, B’Tselem Executive Director Hagai El-Ad charged that “[T]his accusation [of antisemitism] is a propaganda line by the Israeli government… this is being deployed systematically as a silencing tool…”
(Here, where it is in our faces, I acknowledge a very painful phenomenon: some of the Israeli anti-Zionist NGOs are run by Jews. This is much more a modern than an historical phenomenon. For obvious reasons, the damage they do is particularly pernicious.)
But B’Tselem is just one of a whole cluster of similar Israeli NGOs (some of which are Arab-Israeli run): Adalah; Zochrot; Yesh Din; Miftah, founded by Hanan Ashrawi, which accuses Israel of “continuous violation of international law and international humanitarian law;” HaMoked, which regularly represents families of terrorists responsible for carrying out terrorist attacks against Israel; etc.
And then there is the United Nations.
A vast international agency wielding considerably more influence than any NGO, it demonstrates a pervasive anti-Israel bias that sets a tone internationally.
While there is a large anti-Israel voting bloc in the General Assembly (where International Day of Solidarity with the Palestinian People is celebrated), the UN Human Rights Council (UNHRC) is the most virulently anti-Israel arm of the UN. As Oren Drori notes with regard to the procedures of the HRC:
“Agenda ‘Item 7’ is perhaps the clearest evidence of the anti-Semitism that is endemic within many parts of the U.N. system. ‘Item 7’ is a permanent agenda item on the UNHRC schedule that is reserved only for the criticism of Israel; all other U.N. member states are examined under the ‘Item 4’ of the agenda. This item ensures that Israel will be brought up for discussion at each and every council regular session in perpetuity. It is indicative of the obsessive singling-out of Israel that is a major defect built into the UNHRC from its inception.” (Emphasis added)
One tactic regularly employed by our enemies is use of libelous terminology when referring to Israel: “occupation,” “apartheid,” “genocide,” etc. That these terms do not apply to Israel is irrelevant. When people hear them often enough, they begin to be absorbed as true.
The PLO’s Mahmoud Abbas habitually does this, and one of his favorite terms is “war crime.” I have been astounded over the years with regard to the multitude of Israeli actions Abbas refers to as “war crimes.”
Today a war crime essentially refers to an act that constitutes a serious violation of the laws of war that gives rise to individual criminal responsibility, such as torturing, raping, taking hostages, or using child soldiers. There is a long, evolved history here, with changes made in response to the atrocities of WWII. Responsibility once was placed solely on a state, but now individuals are held responsible. And the idea of criminality was introduced – the Nuremberg trials were an early example.
The Geneva Conventions of 1949 provided for the criminality of law of war offenses, but only with respect to “grave breaches.” (And I note here that the terms of these Conventions have been seriously misinterpreted to apply to Israel in damaging fashion – a subject for another day.)
Then almost half a century later, the Rome Statute of the International Criminal Court (discussed following) took on the issue of “war crimes.” The Statute extended the concept so that “war crimes” might apply to “serious violations of the laws of international armed conflict” beyond the “grave breaches” referred to in the Conventions. But there remains considerable confusion as to what “serious violations” would apply and when they would lead to sanctions.
I refer to a paper by the Yale Law School, citing a variety of sources: “the term ‘war crime’ in the Rome Statute was left ‘in a state of general terminological confusion.’”
But of course Abbas cares not a whit if he is making appropriate charges against Israel. He has sailed along blithely with this tactic, using the term “war crime” at the drop of a hat. And it is obvious that he knew where he was headed. For now the anti-Israel offensive has intensified via the International Criminal Court (ICC) in The Hague (Netherlands).
The ICC was established on the initiative of the UN General Assembly, which recognized the need for an international court to prosecute atrocities such as those committed during WWII.
The GA requested of the International Law Committee (ILC) that it draft a statute that would address this concern. The GA then convened a conference in Rome, in June 1998, to finalize the treaty to establish the Court; this was the Rome Statute. The Court began to operate in 2002 after 60 countries had ratified the Statute. Today 123 nations are party to the Rome Statute. It is important to note that Israel is not a member of the Court; neither is the US.
1) The ICC prosecutes individuals, not states. It prosecutes with regard to genocide, war crimes, and crimes against humanity.
2) The ICC can process an individual only if he/she is a national of a state over which the ICC has jurisdiction (i.e. a state that is a party to the Statute), or the crime was committed in territory over which the ICC has jurisdiction (territory of a state that is party to the Statute).
3) It is considered a court of last resort, to prosecute the most heinous offenses in cases where national courts fail to act.
4) Even though the UN was instrumental in establishing the ICC, the Court is considered an autonomous agency – it is not an arm of the UN.
Abbas has long nurtured a desire to secure prosecution of Israelis via the ICC. But he ran into two problems: Israel is not a member of the Court, and the PLO is not a state. For him to proceed, one condition or the other would be necessary, as spelled out in the second point above.
The PLO applied to the UN for membership as a state, but was blocked by the Security Council. The status the PLO held was “non-state observer.” But in November 2012, the General Assembly passed a resolution granting the PLO status as “a non-member observer state” at the United Nations; this did not require Security Council approval.
But does this vote make the PLO a state?
In international law there is a legal test for determining statehood: According to the Montevideo Convention of 1933, a state must have a permanent population, a defined territory, a government, and a capacity to enter into relations with other states. The PLO does not qualify.
What is more, UN General Assembly votes are not binding and carry no legal weight.
But it is not difficult to see where the GA vote on PLO status was going: In 2015, the PLO applied for membership in the International Criminal Court and was accepted. The Court based its decision on the fact that the PLO was already recognized as a state by the UNGA.
There are members of the legal community who are convinced that the UNGA accepted the PLO as a state precisely for this purpose. Attorney Anne Herzberg of NGO-Monitor says that many nations that voted for the UNGA resolution had indicated they didn’t really think the PLO was a state.
Other than in this instance, the ICC has included for membership only states that are universally recognized as such. But the Court made an exception for the PLO.
Eugene Kontorovich, professor of international law, notes that the ICC is supposed to be independent. But it is compromising its independence by basing its determination of PLO statehood solely on what the UN said, without doing its own investigation.
It has taken quite a while, but we recently arrived at the final end point of all the machinations regarding the status of the PLO as a state:
On February 5, the ICC ruled that it has jurisdiction to probe the actions of Israelis in Gaza, Judea & Samaria (aka The West Bank) and eastern Jerusalem, all ostensibly part of the territory of “the State of Palestine,” which is a member of the ICC. The PLO had petitioned the ICC in this regard.
As Kontorovich observes: This is a unique situation, with a non-member state being investigated at the behest of a member of the ICC that is not a state. This, he said, “judicially weaponizes” the ICC: the legal process of the ICC is being utilized as a weapon against Israel.
ICC Chief Prosecutor Fatou Bensouda, of Gambia, had announced in 2019 that she was interested in pursuing prosecution against Israelis for war crimes.
First, however, she sought a ruling from the Pre-Trial Chamber (a three judge panel) as to whether the ICC has jurisdiction, with clarification as to the extent of the territory over which the ICC has jurisdiction.
She received a go-ahead now, although one of the three panel members, Péter Kovács, dissented.
The two main areas that the Court would be likely to focus on are “settlements” in Judea and Samaria, and defensive war with Hamas in Gaza. A number of key Israeli leaders face the possibility of being charged because of their involvement in one of these “crimes” or the other.
I think Prime Minister Netanyahu said it best in his response (emphasis added):
“It was appalling, he said, that ‘the same court established to prevent atrocities like the Nazi Holocaust against the Jewish people is now targeting the one state of the Jewish people.’
“This is particularly true…when the ‘ICC refuses to investigate brutal dictatorships like Iran and Syria, who commit horrific atrocities almost daily.’
“’When the ICC investigates Israel for fake war crimes – this is pure antisemitism.’
“The ICC, ‘outrageously claims that when Jews live in our homeland, this is a war crime’…It also ‘claims that when democratic Israel defends itself against terrorists who murder our children and rocket our cities – we are committing another war crime.’”
Israel’s vigorous defense would likely occur on both the diplomatic and legal levels. Shurat Hadin-Israel Law Center has prepared a bill ready to present to the 24th Knesset; it would outlaw any activity by the ICC in Israel and impose prison sentences on any Israelis or Israeli institutions who hand information over to the ICC without approval from the Justice Ministry.
Israel has received support from a number of quarters with regard to this whole procedure. In any event, it is, at most, in an investigatory stage and may never come to indictments. Should it, it would be years from now.
But what may render this moot is the fact that just days after the Court ruling about jurisdiction, a new Chief Prosecutor – British barrister Karim Khan – was elected to a nine-year term, replacing Bensouda. It remains to be seen as to whether he will choose to pursue the matter when he assumes office in June.
A couple of quick good news items in closing:
Equatorial Guinea President Teodoro Mbasogo on Friday [February 19] informed Prime Minister Netanyahu by phone that he would be transferring Equatorial Guinea’s embassy to Jerusalem.
We had extraordinary rain last week, and more than a little snow, including some in Jerusalem for the first time in years. As a result of the weather, the Kinneret rose eight centimeters in a single day.
The Israel Missile Defense Organization (IMDO) and the U.S. Missile Defense Agency (MDA), have begun development of the Arrow-4 system. “Arrow-4 will be an advanced, innovative interceptor missile with enhanced capabilities. It will address a wide range of evolving threats in the region and will replace the Arrow-2…”
© Arlene Kushner. This material is produced by independent journalist Arlene Kushner. Permission is granted for it to be reproduced only with proper attribution.