Bensouda’s effort makes a mockery of both international law and justice. It is based on the notion that there is currently a State of Palestine that exercises sovereignty over all of the West Bank, Gaza, and the portion of Jerusalem that was illegally occupied by Jordan from 1949 to 1967. Only such a sovereign state can invite the ICC to prosecute war crimes in Gaza or the territories.
As Kohelet Forum director and George Mason University Law School professor Eugene Kontorovich told JNS, Bensouda’s move is absurd because it “ignores international law by inventing a Palestinian state that does not exist and creates a crime that no one in international law has ever been charged with before: the crime of people living in places. To say it is a war crime for a Jew to live in the Jewish Quarter of the Old City is absurd. It is quite clear that the crime of people living somewhere is a crime for which one must be Jewish to be eligible.”
The biased nature of Bensouda’s reasoning is made all the more clear by the fact that the ICC has already pointedly refused to treat Russia’s moving of its citizens into Crimea, which it illegally seized from Ukraine in an act of aggression in 2014, and the presence of Turks in Northern Cyprus — the result of the Turkish invasion of that island in 1974 — as worthy of prosecution.
Israel had every right to defend itself against the thousands of rockets indiscriminately fired against its cities, towns, and villages by Hamas terrorists in 2014 as part of Operation Protective Edge. And given Hamas’s decision to use Palestinians as human shields, coupled with its use of schools and hospitals to facilitate its terrorist activities, treating the civilian casualties incurred during the fighting the Palestinians initiated as war crimes is not rooted in any coherent interpretation of international law.
The effort to treat the presence of Jews in parts of Jerusalem and the administered territories as a war crime is even more outrageous. The attempt to interpret the Geneva Convention as outlawing Israeli settlement flies in the face of the fact that these lands were not the sovereign territory of another country. They were taken by Israel during the course of a defensive war, but were also previously designated as places for “close settlement” of Jews in the documents that authorized the last internationally recognized sovereign power there: the British Mandate for Palestine.
Critics of the ICC aren’t wrong to point out that Bensouda’s background as a legal official in a dictatorship should render her ineligible for her job. The fact that her office refused to meet with Israeli and Jewish legal scholars while openly consulting with the Palestinian Authority also ought to taint her pretensions to be a fair-minded judge when it comes to the Jewish state.
This is just one more example of a hypocritical international community that judges Israel and the Jews by a double standard applied to no other nation in the world. Under the circumstances, Israeli Prime Minister Benjamin Netanyahu’s accusation that Bensouda’s decision is an example of “pure antisemitism” is spot on.
But the real fault here is the Palestinians’ desire to go down this path, rather than attempt to make peace with Israel.
No matter how prejudiced the ICC and its chief prosecutor may be, the supposed moderates running the Palestinian Authority made this farce possible; it represents their desperation to avoid negotiations with Israel under any circumstances.
The PA has rejected Israeli peace offers that would have given it statehood over nearly all of the West Bank, Gaza, and a share of Jerusalem. It refused because doing so would require it to give up the hope of eliminating the State of Israel altogether. That’s the reason why it not only refused to explore the Trump administration’s peace initiative, but also torpedoed President Barack Obama’s diplomatic efforts — in spite of the fact that he was determined to tilt the diplomatic playing field in their direction.
The PA wants to delegitimize Israel in international courts because it is incapable of living in peace with a Jewish state, no matter where its borders are drawn. What this sorry episode at the ICC really exposes is the ongoing and delusional efforts of the Palestinians to avoid making peace at all costs.
Jonathan S. Tobin is editor in chief of JNS—Jewish News Syndicate. Follow him on Twitter @jonathans_tobin.