The bombardment of civilian areas across Ukraine has led to hundreds, possibly thousands, of deaths and has forced a wave of refugees numbering in the millions to flee their homes.
Political action within the United Nations Security Council and General Assembly has been an unsuccessful and ineffective effort to halt the fighting and settle the conflict by peaceful means pursuant to the Charter of the UN. The violations of international law and the allegations of war crimes and crimes against humanity have generated a series of legal consequences in international legal bodies.
In a statement issued on Feb. 28, the prosecutor of the International Criminal Court, Karim Khan, acknowledged that “there is a reasonable basis to proceed with opening an investigation by the Court.”1
Citing detailed data in a 2020 ICC report on its annual activities, he concluded that the criteria for proceeding with an investigation with regard to war crimes and crimes against humanity committed in Ukraine, both regarding the 2014 Russian occupation of Crimea, as well as the present ongoing hostilities, are within the jurisdiction of the court, the subject matter of the alleged crimes, their admissibility by the court and the interests of justice.2
Accordingly, on March 1, the prosecutor informed the court of his intention to open an investigation.3 He subsequently announced on March 2 that the court had received referrals by no less than 39 states parties to the ICC Statute, including Germany, France, Spain and Italy, with Canada, Australia and New Zealand among the non-EU states calling upon the court to open such an investigation against the Russian political and military leadership.4
International Court of Justice (ICJ)
Parallel to the referrals to the ICC, on Feb. 27, Ukraine filed a petition against Russia with the International Court of Justice at The Hague (ICJ),5 arguing that Russia had made unsubstantiated accusations against Ukraine of genocide to justify its aggression against Ukraine. In so doing, Ukraine claimed that Russia was in violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”).6
Subsequent to this petition by Ukraine, the ICJ held its first hearing on the “Ukraine v. Russian Federation” case on March 7, and called on Russia to enable the court to determine provisional measures pending the hearing of the case.7 On the first day of the hearing, however, Russia refused to attend.8
Clearly, the intensity of this conflict, the multiple violations of international law that are occurring, the economic and humanitarian consequences and the response of the international community are all indicative of the unprecedented seriousness of this conflict and the danger that it poses to both international peace and security and the world order.
Implications on other regional and local conflicts
These factors inevitably give rise to the need to place into correct proportion those other, comparatively minor, regional and local conflicts that have engaged and continue to engage the international community.
In light of the above-noted serious, urgent and drastic legal proceedings regarding the Russia-Ukraine crisis being taken in the international judicial bodies, the incessant Palestinian manipulation and abuse of those same international juridical bodies as a major Palestinian weapon in their “lawfare” campaign against Israel must be viewed in the correct contextual proportion.
Indeed, in various media and radio interviews at the beginning of this month, Palestinian spokespeople expressed considerable concern and indignation that the international community, including those same international judicial bodies in which they actively engage, are immersed in the legal proceedings regarding the Russia-Ukraine war, rather than pursuing Israel.9
- PLO Executive Committee member Salah Rafat observed that “from the start of the Ukraine crisis there is international turmoil and governments are rising and shouting as the Palestinian people suffer the occupation for 70 years.”
- Palestinian Foreign Ministry spokesman Omar Odallah is quoted in Palestinian media complaining of a double standard: “There are double standards and the equal standards must be imposed on everyone, which is a test for the court in The Hague. What’s happening is the destruction of the international order and international law, and one criterion for Europe and one criterion for others, that’s what we see in Ukraine.”
- Politician and Director of the Palestinian Government Media Center Ghassan al-Khatib, a former Palestinian minister and member of the PLO delegation to Washington, stated on Palestinian radio: “The difference between us and Ukraine is an example of American double standards, but now it’s clear. Your international relations are built not on values but on power and interest. Therefore, as the spirit of the Arabs descends, we must build strength.”
- The Director of Palestinian human rights NGO Al Haq, Shawan Jabarin, observed that “the Ukraine issue has raised the issue of the boycott. Western countries are boycotting Russia; why don’t they boycott Israel? There’s a black man, and there’s a white man.”
Such Palestinian lamentations are misplaced, misleading and manipulative.
Witnessing the open warfare, the massive bombardment of civilian population centers and the waves of refugees, the Palestinian attempt to compare or equate the Palestinian issue with the immensity and lethality of the Russia-Ukraine conflict and its handling by the international community is patently flawed and presumptuous.
In a situation where no less than 39 state parties to the ICC Statute have made a formal referral to the court requesting the opening of an investigation, and where the prosecutor has formally pointed to clear violations of international law, crimes against humanity and war crimes, no equation can, or should be made, between these horrors and the legally questionable Palestinian complaints to the court.
Questionable Palestinian status
The international community in general, and the prosecutor of the ICC in particular, are well aware of the jurisdictional questions facing the court regarding any possible exercise of its jurisdiction in disputed territories. This is because the permanent status and sovereignty of the territories have yet to be determined by negotiation between Israel and the Palestinian leadership, pursuant to the internationally acknowledged agreements between the PLO and Israel.
Such jurisdictional issues are no less relevant regarding the Palestinian status vis-à-vis the ICC. While claiming to be a state member of the court, there are serious legal doubts about the validity of their claim to statehood and their claim that the territories are sovereign Palestinian territories in which the Court can exercise its jurisdiction.
Similar legal doubts exist regarding the substantive validity and admissibility of the Palestinian referrals to the court against Israel and whether they meet the criteria established in the court’s statute as to the gravity of the complaints and whether they serve the interests of justice.
In fact, compared to the massive, urgent and severe humanitarian issues arising in the context of the ongoing Russia-Ukraine conflict, as formally stressed by the ICC prosecutor in his official statements, the Palestinian issue deserves no comparison.
On the contrary, it is widely acknowledged that the Palestinian referrals to the court do not stem from any genuine or substantive concern for human rights. They are part of the Palestinian political struggle to manipulate international judicial organs within the international community to target and delegitimize Israel.
Misleading criteria regarding international-law violations
The attempts by Palestinian spokespeople, NGO movements and international media to equate Israel’s actions in the territories with the massive international law violations, war crimes and crimes against humanity committed in the Russia-Ukraine conflict are no less presumptuous and manipulative.
- Unlike the situation in Ukraine, Israel does not conduct a war of aggression and does not engage in the indiscriminate and massive bombardment of civilian population centers, use cluster bombs and other prohibited weaponry, fire ballistic missiles or drive masses of refugees to leave their homes, towns and villages.
- On the contrary, faced with ongoing terror and repeated massive rocket attacks against its civilian population, Israel legitimately responds in self-defense by selectively and proportionately targeting specific military targets, tactical terror headquarters and facilities, rocket emplacements, and ammunition storage facilities.
- Unlike the Palestinian terror groups that conceal themselves within, adjacent to and underneath homes, medical facilities, schools, commercial buildings, office blocks and mosques, thereby using the civilian population as human shields, Israel goes to considerable efforts to avoid civilian casualties. Prior to any military action against terrorist targets, Israel provides early warning to civilians so that they may distance themselves.
- While the Palestinian terror groups regularly engage in environmental and agricultural terror in violation of accepted humanitarian norms by using illegal weaponry, launching exploding kites and incendiary balloons, and by releasing poisonous smoke and fumes aimed at Israel’s civilian population and agricultural areas, Israel observes all relevant international norms and principles in coping with such Palestinian violations. (Those destructive balloons were originally donated by UNRWA donors for the amusement of Gaza children.)
- Unlike Russia in this conflict, Israel does not target public utility facilities, power plants or locations and monuments of religious, cultural or historical significance.
- On the contrary, Israel enables a constant flow into Palestinian areas of thousands of trucks carrying supplies, food, provisions, medicines and construction materials through the various border-passage points.
- In any conflict, the IDF Military Advocate General’s Corps provides legal advice on the Law of Armed Conflict to commanders at the General Staff, Regional Command and divisional levels. For instance, IDF military lawyers were involved in advising commanders on the international law aspects of Gaza operations (Israel Ministry of Foreign Affairs).
Attempts to draw comparisons between the Russia-Ukraine conflict and the Palestinian issue are patently false, malicious and manipulative, and should not be entertained.
Israel expends considerable efforts to ensure that its actions to defend itself from Palestinian terror attacks accord with all international norms and relevant conventions. It does not engage in the mass bombardment of civilians, the use of illegal weaponry or the starvation of the civilian population.
Attempts to equate and compare the vital international judicial activity in the ICC and the ICJ in the context of the Russia-Ukraine conflict with the politically-generated Palestinian delegitimization campaign against Israel using the ICC and other international bodies are no less malicious and false.
They should be rejected out of hand. There is absolutely no logical or realistic basis for such comparisons.
Notes
1 https://www.icc-cpi.int/Pages/item.aspx?name=20220228-prosecutor-statement-ukraine
2 https://www.icc-cpi.int/itemsDocuments/2020-PE/2020-pe-report-eng.pdf
3 https://www.icc-cpi.int/Pages/item.aspx?name=pr1643, https://www.icc-cpi.int/RelatedRecords/CR2022_01687.PDF
4 https://inews.co.uk/news/russia-referred-international-criminal-court-alleged-war-crimes-ukraine-1495243, https://www.icc-cpi.int/Pages/item.aspx?name=2022-prosecutor-statement-referrals-ukraine The following states signed the referral: Republic of Albania, Commonwealth of Australia, Republic of Austria, Kingdom of Belgium, Republic of Bulgaria, Canada, Republic of Colombia, Republic of Costa Rica, Republic of Croatia, Republic of Cyprus, Czech Republic, Kingdom of Denmark, Republic of Estonia, Republic of Finland, Republic of France, Georgia, Federal Republic of Germany, Hellenic Republic, Hungary, Republic of Iceland, Ireland, Republic of Italy, Republic of Latvia, Principality of Liechtenstein, Grand Duchy of Luxembourg, Republic of Malta, New Zealand, Kingdom of Norway, Kingdom of the Netherlands, Republic of Poland, Republic of Portugal.
5 The ICJ is the principal judicial organ of the UN dealing inter-alia with litigation between states that have accepted its jurisdiction. The ICC is the independent judicial institution dealing with the most serious crimes committed by individuals.
6 https://www.icj-cij.org/public/files/case-related/182/182-20220227-PRE-01-00-EN.pdf
7 https://www.icj-cij.org/public/files/case-related/182/182-20220301-PRE-01-00-EN.pdf
8 https://kyivindependent.com/national/ukraine-v-russian-federation-international-court-of-justice-starts-hearings/
9 Radio Filastin, March 6, 2022, as recorded and documented by Pinhas Inbari, veteran Palestinian affairs correspondent and senior analyst at the Jerusalem Center for Public Affairs.
Ambassador Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.
This article was first published by the Jerusalem Center for Public Affairs.
by Alan Baker / JNS.org
