Sadly but unsurprisingly, there has been no shortage of bad news lately and I suspect that this situation will continue.
The International Criminal Court, the ICC, has gone against all precedent and broken any kind of law rule-book, in order to reopen the case against Israel regarding alleged war crimes committed in the Mavi Marmara incident, a case which had already been closed by the ICC’s own prosecutor Fatou Bensouda:
In a shocking 2-1 decision, the International Criminal Court on Thursday ordered its chief prosecutor Fatou Bensouda to consider opening a full criminal investigation into war crimes allegations against IDF personnel relating to the 2010 Mavi Marmara flotilla, just seven months after she had closed the file.
Using harsh language, the ICC told Bensouda she should have considered more seriously the possibility that the deaths of those killed by the IDF in the incident were “systematic or resulted from a deliberate plan or policy to attack, kill or injure civilians.”
The decision puts the ICC the closest it has ever been to intervening directly in the Israeli-Arab conflict and places the court in the position of potentially being harsher on Israel than Bensouda, who herself has been criticized by Israel for recognizing a State of Palestine.
Israel is furious:
Prime Minister Benjamin Netanyahu lashed out at the decision. “At a time when, in Syria, [President Bashar] Assad slaughters hundreds of thousands of his own people, Iran sends hundreds to death, and Hamas uses children as human shields in Gaza, the court has chosen to deal with Israel for cynical political reasons,” Netanyahu said.
“In the face of this hypocrisy, our soldiers will continue to guard us from the front and we will defend them in the international arena,” he added.
Mention of hypocrisy is superfluous. With their built-in Muslim majorities, all international institutions on principle ignore Muslim violence and are automatically anti-Israel, and are therefore by definition hypocritical.
Bensouda very well may close the file again, but the court’s order means there is a very serious chance Israelis will face a full criminal investigation – something that has not yet occurred even regarding the 2014 Gaza war, Operation Protective Edge.
Until Thursday’s decision, most thought the flotilla incident and the lawfare surrounding it were in the past.
The ICC’s reasoning on Thursday was also harsh with regard to Israel and more general legal issues.
Regarding the Gaza blockade, the court appeared to suggest that the fact that the IDF’s action maintained the blockade and controlled the passing of humanitarian supplies by land somehow added to the gravity of potential war crimes by the IDF. Next, the majority put heavy emphasis on alleged inhuman treatment, torture and cover- up of war crimes by the IDF in how it handled Mavi Marmara passengers after they were detained.
The court said it had wide latitude to order a prosecutor to reopen an examination and that Bensouda’s discretionary authority did not require substantial deference from the judges.
The two judges in the majority were presiding Judge Joyce Aluoch of Kenya and Judge Cuno Tarfusser of Italy.
Judge Peter Kovacs of Hungary dissented, rejecting the majority ICC decision on several grounds.
First, he said, the majority had not been sufficiently deferential to Bensouda’s wide discretion as prosecutor to decide when to open and close investigations.
Next, Kovacs criticized the majority for mixing allegations of inhuman treatment of flotilla passengers after they were detained with alleged war crimes of murder during the IDF’s taking control of the Mavi Marmara.
Effectively, Kovacs said the majority was taking upon itself to add new alleged war crimes into the mix for analyzing how grave the incident was, instead of reviewing the existing alleged war crimes.
Ultimately, Kovacs found that the killing of 10 passengers in the flotilla incident was not grave enough for the ICC to get involved, especially when compared with a parallel situation such as in Kenya where 1,220 people were killed by Islamists, in six of eight Kenyan provinces.
Crucially, Kovacs added that even if the prosecutor had made a mistake in defining the case as not grave enough, he wrote that the IDF had issued warnings to the ship to turn around and acted in the face of “violent resistance” from passengers.
Law professor Prof. Avi Bell weighs in on the subject, saying that the ICC has declared war on Israel:
The Pre-Trial Chamber of the International Criminal Court, for the first time in its history, has ordered the ICC Prosecutor to pursue an investigation she has decided to close. The Chamber ruled that the Prosecutor was wrong to close the preliminary investigation into war crimes charges against Israel for crimes allegedly committed in boarding the Mavi Marmara and other vessels during the flotilla incident of 2010.
The ruling of the Pre-Trial Chamber is remarkable.
It holds that the Prosecutor should have taken into account facts and actions that are outside the jurisdiction of the court in deciding whether to bring charges.
It holds that the Prosecutor should assume the truth of even the wildest accusations in deciding whether to bring charges; in other words, there should be an irrebuttable presumption of guilt in the preliminary investigation stage.
And most shockingly, it holds that crimes have sufficient gravity to interest the court, even if they have very few actual victims, as long as they are widely covered by the media, and are subject to a lot of political activity at the UN.
Needless to say, none of these holdings are accompanied by any citation to precedent. That’s because they are without any precedent.
And it’s a safe bet that last two of these “rules” will never be applied to any non-Jewish, non-Israeli defendant. That’s because the rules, if universally applied, would require the Prosecutor to investigate thousands of non-crimes every year, making the prosecution of real crime impossible. And it would make the Prosecutor throw away legal standards and make her choices based on the most political UN proceedings.
Prof. Bell describes in detail the dissenting voice on the panel of Peter Kovacs, who notes the hypocrisy in the decision (emphases are added):
First, Judge Kovács points out, it requires serious distortion of both the facts and the law to come to the conclusion that Israel committed any crimes at all.
Moreover even if Israeli actions in stopping the flotilla were criminal, they are outside the jurisdiction of the court, because they are of insufficient “gravity.” The “gravity” rule states that the Court should only pursue the largest and most serious international crimes. It is clear that if there were any Israeli crimes here, they were not of that magnitude.
As Kovács writes, “Upon comparison, for instance, between the number of deaths in the flotilla incident with the number of murders and serious injuries which prompted [the] Pre-Trial Chamber  to authorize, by majority, the Prosecutor to open an investigation into the situation in the Republic of Kenya, one may observe a huge discrepancy. The violence in the Kenya situation resulted in the death of about 1,220 and the serious injury of 3,561 persons in six out of the eight Kenyan provinces.” Kovacs concludes that it is doubtful that “the death of ten persons and the injury of 55 others in the context described in the Prosecutor’s report and the Comoros submission is sufficiently grave to warrant the opening of an investigation into this situation.”
And now we come to the crux of the whole matter – the inherent anti-Israelism and Jew-hatred (let’s call antisemitism by its real name) of the ICC:
The ICC, like altogether too many other international institutions that claim to protect law and justice, is just another political institution. And like all those other political international institutions, it is all too ready to fabricate new and uniquely harsh standards of “law” to apply only to the detriment of the Jewish state, and to fabricate facts to find the leaders and Jewish citizens of the Jewish state guilty of all manner of horrible crimes.
It is now clear where the PLO’s joining the court will lead. Palestinian terrorists and war criminals will continue to enjoy absolute impunity. The ICC will earn its reputation as another failed hope for international law, and another embarrassing institution devoted to persecuting the Jewish state. And Israeli Jews will once again find themselves in a world where it is criminal simply to exist, and where stepping foot in the wrong country means instant arrest.
Israel a country full of excellent lawyers (we are a Jewish country after all) and they must put their heads together to counter this dangerous and disgusting Israel-hating decision. There is also no shortage of lawyers, whether Jewish or not, outside of Israel who have sympathy both with our stance and altogether have a healthy respect for the rule of law. They must be called upon to help us back up our case and take on the biased hypocrites who call themselves judges but who can’t distinguish right from wrong.
Speaking of right and wrong, sometimes our actions, taken with all good intent, have the most evil of results. This is what has become evident over the years since the Shalit deal when over 1,000 terrorists were released for captured IDF soldier Gilad Shalit. The released terrorists have been returning to their violent ways in increasing numbers. A few days ago the murderer of Malachi Rosenfeld HY’D (who was killed a couple of weeks ago) was caught, and it turns out he was one of the terrorists released in the deal:
Four members of a seven-strong Hamas cell behind a deadly terror attack in the West Bank last month have been detained by Israel, the Shin Bet security service said Sunday. Two others are being held by the Palestinian Authority.
Malachy Rosenfeld was killed, and three others were wounded, when gunmen opened fire on their car near the West Bank settlement of Shvut Rachel, north of Ramallah, as they returned from a basketball game.
The cell also carried out an attack on an ambulance close to the settlement of Beit El on June 27, in which no one was wounded; they had attempted to carry out a separate attack on June 6.
The four men were detained in a joint operation between the Israel Police and the Israel Defense Forces, according to the Shin Bet. Two other cell members, including its operations leader, are being held by the Palestinian Preventive Security Services.
The Shin Bet said Sunday that the seventh man, Ahmad Najjar, who orchestrated and funded the shooting attack from Jordan, was among the prisoners released by Israel for captured Israel Defense Forces soldier Gilad Shalit in 2011. He has not been apprehended.
Israeli news site Ynet reported that Najjar was previously imprisoned for several shooting attacks, including one that killed six Israelis during the Second Intifada.
The cell members admitted that they had intended to carry out additional shooting attacks in June.
Arutz Sheva reports that terrorists from the Shalit deal have killed 6 Israelis so far:
Opponents of the 2011 deal that freed captured soldier Gilad Shalit in exchange for 1,070 terrorist prisoners are experiencing a sad vindication as more and more Israelis are being murdered by terrorists freed in that deal.
News of the arrest of the terror ring that was responsible for the recent murder of Malachi Rosenfeld includes the information that the cell was directed from Gaza by Ahmed Najar, who was freed in the Shalit deal.
Col. Baruch Mizrachi and Danny Gonen were also murdered by terrorists freed in the Shalit deal, and the terrorists who murdered the three youths – Naftali Frenkel, Gilad Sha’ar and Eyal Yifrah – in 2014 were also directed from Gaza by a terrorist freed in that deal.
“The terrorists freed in the Shalit deal are murdering us,” said MK Moti Yogev (Jewish Home) Sunday.
The psychological pressure on Israelis to accede to that mass release was enormous:
Channel 2 TV political reporter Amit Segal wrote Sunday in his blog that Israeli society had reached a state of insanity by 2011, when the Israeli government convened to approve the release of the terrorists, who had murdered 619 Israelis in total.
Anyone who opposed the release was perceived as “a cold hearted cynic, who supports Gilad’s death,” wrote Segal. “The final, winning argument that was presented before the prime minister and ministers was – ‘and what if it was your son?’”
That argument can now be answered, wrote Segal, with: “And what if Baruch had been your father? And what if Malachi was your brother? And Danny? And Naftali, Gilad and Eyal?”
And now we see the terrifying possibility of more such pressure with the recent news of 2 more Israelis being possibly held by Hamas. We must stand firm this time.
The lessons to be learned from the two stories in this post are clear: none of our goodwill gestures, whether to NGOs, to international institutions, to enemy civilians or to terrorists are ever repaid in kind.