NGO Monitor Conference on the ICC – to cooperate or not to cooperate? (Updated)

I had the privilege of attending the NGO Monitor Conference on the Future of the ICC which took place at Bar Ilan University on Monday. (Update: I have inserted the improved-quality video of the debate below).

It was a fascinating discussion by esteemed and very knowledgeable speakers: Northwestern Professor and Kohelet Policy Forum lawyer Eugene Kontorovich; IDF International Law Department and Institute for National Security Studies legal director Pnina Sharvit Baruch; and Bar-Ilan University and University of San Diego Prof. Avi Bell. It was moderated by NGO Monitor legal adviser Anne Herzberg and introduced by NGO Monitor and Bar-Ilan Prof. Gerald Steinberg.

L-r: Anne Herzberg, Avi Bell, Penina Sharvit Baruch, Eugene Kontorovich

L-r: Anne Herzberg, Avi Bell, Penina Sharvit Baruch, Eugene Kontorovich

The Jerusalem Post has a short overview of the debate but it does not do it full justice in my humble opinion. Here are the highlights:

The panel discussion – sponsored by NGO Monitor and the university – was highly skeptical overall of how the ICC would treat Israel, though at least one panelist advocated informal cooperation as a tactic for reducing the risk of prosecution for alleged war crimes.

After recognizing “Palestine” as a state in January 2015, the ICC prosecutor opened a preliminary examination of alleged war crimes related to the 2014 Gaza war and to the settlement enterprise.

Despite Israel’s vehement protest of the ICC’s Palestine decision, it eventually decided in July 2015 to cooperate informally on jurisdiction issues, including an October visit to the region by members of the ICC prosecutor’s staff.

The ICC prosecutor still has not decided whether to move from an examination to a full criminal investigation.

According to Northwestern Professor and Kohelet Policy Forum lawyer Eugene Kontorovich, “The ICC is not an all-powerful forum of international justice, but rather a politically weakened institution that has had numerous countries quit its membership in recent months. Perhaps it is true justice that real countries began quitting the ICC shortly after it accepted a non-country – Palestine.”

Kontorovich opposed continued cooperation. He said Israel could make its arguments against jurisdiction through NGOs and other third parties.

He added that it was problematic to cooperate with the ICC as long as it recognizes Palestine as a state, and that the Palestinians should be pressured to withdraw their membership from the ICC as some African countries are in the process of doing.

In contrast, former IDF International Law Department and Institute for National Security Studies legal director Pnina Sharvit Baruch said, “I think it is taking too great a risk not to cooperate. There is no proof yet that the court will be clearly political. But we have good arguments and Israel should present them” to try convincing the ICC to back off.

NGO Monitor legal adviser Anne Herzberg expressed concern. “The Office of the Prosecutor appears to be repeating many of the mistakes of other international organizations investigating armed conflict by heavily relying on the unverified claims of a narrow sector of political advocacy NGOs,” she said. “In the case of the investigation of the Gaza War, this narrow sector consists almost exclusively of NGOs promoting the Palestinian narrative. If the ICC wishes to be viewed as credible… the prosecutor must end this practice.”

Looking back at how the ICC was formed, NGO Monitor president and Bar-Ilan Prof. Gerald Steinberg said: “Clearly the ICC is a political body as much as it is a legal body. NGOs, such as Amnesty International and Human Rights Watch are seeking to use this human rights framework as part of political lawfare, demonization of Israel… and war crimes allegations.”

Arguing that the court often uses political rather than legal definitions, including broad interpretations of occupation and settlement activity, Bar-Ilan University and University of San Diego Prof. Avi Bell noted, “When the crime has expanded to everything, we are all criminals.”

No panel members came from the Left end of the political spectrum in terms of alleging war crimes by Israel.

A live video, later uploaded to YouTube, was produced and posted on NGO Monitor’s Facebook page. Unfortunately the sound quality is terrible. I have been assured by the organization that a better quality video will be posted shortly, but for the moment I post the video below.

UPDATE: Here is the very much improved quality video:

Luckily I also audio recorded most of the discussion, and I post below the salient points of the debate. These centered around the question, asked by Makor Rishon journalist Ariel Kahana, whether  it is in Israel’s interest to cooperate with the ICC or not, even though it is not a member of the ICC.

First to answer was Penina Sharvit Baruch, who took a generally more lenient attitude towards the ICC throughout the debate:

 

She was followed by Prof. Eugene Kontorovich who disagreed with her:

 

But the strongest advocate for non-cooperation was Prof. Avi Bell who was very vehement in his opposition to any coopertion with the ICC for a number of rather worrying reasons:

 

Avi Bell also noted a remarkable fact which ought to give us all pause for thought. With all the debates and discussions within Israeli society, the media and politics, the only people ever targeted by the BDS or similar organizations like the ICC have been leftists – precisely the ones who advocate restraint, concessions and cooperation with the hostile international lawfare organizations.  He listed in particular Ami Ayalon and Tzipi Livni, both of whom were hounded by BDS: Ayalon was not permitted to give his speech in London University, and Livni had an arrest warrant issued against her in London.

This goes to prove the point that Israeli concessions are viewed as weakness, which then only gives these NGOs more appetite to go after Israelis – but again, only those Israelis which showed weakness in the first place.

There are very important lessons to be extrapolated from these incidents. Our politicians should be taking heed and hopefully learning from NGO Monitor’s experience.

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15 Responses to NGO Monitor Conference on the ICC – to cooperate or not to cooperate? (Updated)

  1. Anne, it seems that, till now, Israel has only reacted to myriad hostile legal attempts to paralyse her. This conference suggests that momentum is shifting to initiating those processes which will safeguard her interests. In the present climate, israel does not need to be liked. It needs to clean house.
    Thanks 4 posting.

    • anneinpt says:

      Alan, I actually asked Prof. Kontorovich at the end if it was worthwhile for Israel to present its “position paper” on the status of the settlements (i.e. that they are legal) to the ICC in order to forestall future legislation or resolutions.

      But he was very against this idea, like Avi Bell. He was convinced that “anything we say will be taken down and used in evidence against us”. Nothing that we do or say can help us.

      The best we can do is simply ignore them, like the African states they mentioned. But of course not to go as far as the African states which actually assassinate anyone who tries to interfere with them!!

    • anneinpt says:

      I should add that I definitely agree with you that Israel has to get out of the mindset of the “galut Jew” – of wanting to be liked. No one likes us and we shouldn’t care. We need to be feared and respected. That’s all.

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  3. DP-PT says:

    I would respectfully suggest that the best form of defence is attack. One method might be to identify the home countries of the judges and prosecutors on the ICC, and prepare claims against those countries for their “crimes”. Believe me, there are no countries without something they would prefer to remain un-discussed! These files can then be publicised and even raised formally if a claim against Israel ever crystallises, either to de-legitimise said ICC representatives, or to pressure their home governments to pressure the ICC to drop their case.

    • anneinpt says:

      The trouble is that Israel has no standing with the court. It is not a member of the ICC. This however does not prevent it from being prosecuted!

      That was the crux of the debate. But after weighing costs vs benefits it was still concluded (I think) that it’s still preferable for Israel not to join.

  4. Brian Goldfarb says:

    Anne says, above “We [Israel] need to be feared and respected. That’s all.”

    This brings to mind an article I forwarded to Anne which argued that in these dangerous times (terrorist attacks in Europe, the Russian Ambassador being assassinated), we could be facing a situation horribly like that in July/August 1914, but with worse potential consequences, given all the nuclear weapons in the world.

    The author didn’t believe it was that bad, but suggested that it behoved any such nuclear power to be in a position whereby its stockpile of such weapons should not be in a position to have it all destroyed in one attack. I recall in an article of mine that Anne posted here (the link to which I can’t find at the moment, sorry) that it was argued in an online article cited that for all of Iran’s threats to Israel, the Ayatollahs, who may be mad but aren’t stupid, know that Israel has 5 (soon to be 6) nuclear and nuclear armed submarines, 4 of which are always at sea. This says nothing of the arsenal stored at Dimona.

    In other words, the Iranians should, despite all their bluster, be afraid of an Israeli second strike capability.

    If they don’t rear and respect israli, then they are not just mad, but stupid as well.

    • anneinpt says:

      Iran is only one side of this multilateral equation. Israel’s problem is also with the delegitimization war against it – “lawfare” – that even if it does not win, can paralyse Israel’s judicial system and legislature because of the fear of prosecution in the ICC. We see this already in the way Bibi is always cravenly saying he’s for the 2 state solution and always giving more concessions ot the Palestinians, when we all know what he really believes in.

      In this respect lawfare is having much more success than any military attack.

      It is in THIS aspect that Israel has to learn to hold its head high and ignore them. I don’t think we’ve fully internalized that lesson yet.

  5. YJ Draiman says:

    Laws can embody standards; governments can enforce laws-but the final task is not a task for the government. It is a task for each and every one of us. Every time we turn our heads the other way when we see the law flouted-when we tolerate what we know is wrong-when we close our eyes to the corrupt because we are too busy, or too frightened-when we fail to speak out-we strike a blow against freedom, decency and justice.

  6. DP-PT says:

    Brian, I’m not sure your definitions of madness and stupidity apply to the Iranians. Studies seem to show that their Shia leadership believe in the Mahdi/End of days philosophy whereby by destruction of the Jews even at the cost of their own self-immolation they will bring the Coming of the Mahdi where this descendent of Mohammed will rule the world under Sharia law. Second strike might well wipe them out but due to their religious belief system it won’t necessarily deter them. It may well be necessary for Israel to do a pre-emptive nuclear strike destroying Iran when they are on the point of attacking Israel. Remember that Israel’s official doctrine is: Not to be the first to INTRODUCE nuclear weapons in the region. “Introduce” does not mean “use”….

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