After championing the creation of an international criminal court for more than 50 years, Israel is concerned it may become just another tool for bashing the Jewish state.
On July 1, the International Criminal Court, headquartered in The Hague, comes into force with the ability to indict individuals for genocide, crimes against humanity, war and aggression.
The court is expected to begin functioning in one year, after the selection of judges and a prosecutor who are to be chosen in secret ballot by states that signed the international statute creating the court.
Israeli officials fear the court will be used to target Israelis — particularly settlers and soldiers — for prosecution.
The concern stems from what Israel says is a politically motivated text submitted by some Arab states during a conference in Rome in 1998, when the statute bringing the court into force was approved.
For this reason — although Israel signed the statute two years ago to show its support for the court’s moral aims — it has not ratified it.
Israel faces a “dilemma” over the “politicization of the court,” the legal adviser of Israel’s Foreign Ministry, Alan Baker, told JTA.
Israel has been “proud of the fact that it is among the founding fathers of the vision of an international criminal court,” Baker said, noting that Israel took an active role in drafting the statute and participating in the various stages of the court’s creation.
“The Islamic states ensure one way or another that their political war is pushed into everything good,” he said. “They did this with the statute of the criminal court.”
The idea of creating a permanent international criminal court emerged following World War II.
Efforts to establish the court were paralyzed during the Cold War and only renewed in the early 1990s.
In the summer of 1998, the Rome conference finalized the text of the statute creating the court. During the gathering, some Arab states introduced what Israel views as a poisonous provision.
As a result of the Arab move, the war crimes provision includes a reference to the transfer, directly or indirectly, of civilian populations from an occupier’s territory into occupied territory.
“The intention was very clearly to bring in Israel’s settlement policy and to turn it into a war crime,” Baker said.
Because the text of the statute was voted on as a whole, rather than by section, Israel voted against the statute at the Rome conference.
More than two years later, the Israeli government approved the statute, as a show of support for the court’s ideals.
Along with its signature, Israel made a formal declaration stating its rejection of any attempt to interpret the provisions of the statute in a politically motivated matter against Israel and its citizens.
Israel maintains the “transfer of population” provision is not relevant to Israeli settlement activity.
“Article 49 of the Fourth Geneva Convention was drafted after the Second World War to prevent what the Nazis did in Europe, which was mass, forced transfer of population,” Baker said. “This is not our policy. So we’ve argued that this provision should not be applied vis-a-vis Israel.”
Israel also is concerned about possible attempts to bring up war crimes charges in relation to its campaign against Palestinian terrorism.
“We find ourselves confronted with all sorts of proposals and decisions by international organizations” that have been “initiated by the Arab states, singling out Israel and declaring that Israel is committing war crimes and violating international law in doing what we are doing to fight terrorism,” Baker said.
“We can only assume the next step will be to utilize the criminal court to bring Israelis to trial.”
Baker said Israel does not believe that its settlement activities or its war on Palestinian terrorism violate any international laws.
Just the same, he acknowledged that the potential for prosecution exists.
Even if a country did not sign the Rome statute, its citizens can be prosecuted under certain conditions.
The criminal court’s jurisdiction will apply to citizens of non-party states if the alleged crime is committed in a country that is party to the statute, if it involves a country that chooses to accept the court’s jurisdiction on an ad hoc basis, or if the U.N. Security Council refers a case to the court.
The court will not have retroactive authority, meaning it will only be able to deal with alleged crimes committed after the court enters into force.
Palestinians cannot lodge complaints with the court because there is no Palestinian state, but Arab countries can.
Baker said the Arab League has urged member states to ratify the statute so they can elect judges inclined to prosecute Israelis.
Israel is not the only country wary about the court’s potential politicization.
Of the 139 countries that signed onto the statute, only 69 have ratified it.
The United States also has strong reservations about the court, fearing that politically motivated cases will be brought seeking to prosecute Americans — including U.S. peacekeeping personnel — for their actions abroad.
While stopping short of criticizing President Clinton for signing the statute, President Bush has said the United States has “no legal obligations” to the court.
Baker noted that, among the Arab states, only Jordan has approved the statute.
Israel is taking a wait-and-see attitude before ratifying the statute.
“If we see that the court is not going to function as another U.N.-style, Israel-bashing body, then we might well come to the conclusion that we want to associate ourselves with the court,” Baker said.
“We are being assured by countries like Canada and Norway, who are the prime movers, that they won’t permit the court to be misused and abused, because that would be the end of the court,” he said.
“We want to see the extent to which they succeed in implementing this. Hopefully, then we will be in a better position to decide.”
The Archive of the Jewish Telegraphic Agency includes articles published from 1923 to 2008. Archive stories reflect the journalistic standards and practices of the time they were published.