Speaking before the Knesset Law Committee on Tuesday, Attorney-General Elyakim Rubinstein warned lawmakers that the new International Criminal Court, set to start operating on July 1, is liable to indict and try for war crimes any Israeli citizen who moves across the Green Line.
According to the Rome Treaty of 1998 which established the ICC, "The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" is considered a war crime. This subtle departure from the 1949 Geneva Conventions is designed to render private citizens who move voluntarily to "occupied" lands such as French Hill in Jerusalem into war criminals on the order of Saddam Hussein who gassed thousands of his own citizens.
The claim that Israel is an occupying power is dubious at best. But given the international community's acquiescence to the Arab propaganda machine's spurious legal argumentation, this little clause deliberately introduced by the Egyptian delegation means that all Israeli communities in Judea, Samaria, the Gaza Strip, the Golan Heights, the Jordan Valley, and post-Six Day War neighborhoods in Jerusalem can fall into the Rome Treaty's definition of war crimes.
What differentiates the ICC from the already existing World Court at the Hague is that, whereas the World Court can only try government officials sued by other governments, the ICC also has jurisdiction over individuals against whom charges may be brought by other individuals. Thus, not only are Israeli officials – including line soldiers – liable for their actions before the world tribunal, but regular citizens are also open to prosecution.
It doesn't even matter whether Israel ratifies the treaty or not. The ICC can indict, try, and imprison anyone. Alleged crimes committed by nationals of non-member states can be referred to the court by member states or the UN Security Council. If neither refers a matter to the court, prosecutors can take matters into their own hands and indict nationals of non-member states if it so pleases them.
This is the reality we will be living under come July 1. The ICC's building is under construction and by next year, prosecutors and judges will have been appointed. It has happened. And the danger to Israel emanating from this court is far from theoretical. The groundwork for turning Israel into the first and principal state against which the ICC will take legal action has already been laid.
As we saw at the UN's Orwellian conference on racism last August, the European-based international community views Israel as a criminal state. Zionism, we were told by the overwhelming majority of delegates to the conference, is a noxious form of racism. The Holocaust is just one of many human rights abuses and should be referred to with a lower-case "h." Jewish self-determination is a new form of apartheid which, by the way, is also defined as a war crime by the Rome Treaty.
So, Israelis are Nazis. The international community has judged the IDF guilty of committing a massacre at the Jenin refugee camp. Preemptive assassination of Palestinian terrorists is a war crime and incursions into Area A are war crimes.
In Europe, as synagogues burn to the ground, Israel is daily portrayed by the mass media as a criminal state. And, ahead of the official opening of the ICC, Palestinian delegations have flocked to the Continent to make the case for indicting IDF officers and government officials by the new tribunal.
We must pause for a moment to recognize the enormity of the current distortion of reality. Today, Israeli officials are forced to warn us that we face a grim future of defending against accusations of war crimes. Meanwhile, sitting inside the Land of Israel is the Palestinian Authority, an entity laced from top to bottom with war criminals all breathlessly awaiting the formation of the new court.
At Tuesday's Law Committee meeting, Rubinstein and State Attorney Edna Arbel assured Knesset members that the Justice Ministry will defend any law-abiding Israeli citizen forced to stand for trial before the ICC. Rubinstein appointed Assistant State Attorney Rahel Sucor to head an inter-ministerial committee mandated to plan for all possible contingencies that may arise as a result of the court's operations.
This is, of course, all necessary and well and good. But to truly defend Israel against ICC action, it is necessary to assess how this danger has befallen us in the first place.
The entire notion of an international criminal court, empowered to try and punish those guilty of heinous crimes such as genocide and crimes against humanity, was spawned by Jewish jurists. Since the 1950s, both Israeli lawyers and Jewish lawyers from the Diaspora were at the forefront of the effort to establish such a court. Haunted by the Holocaust, these well-meaning Jews, like the late Israeli Supreme Court Justice Haim Cohen, believed that it was imperative that the international community have a legal means to enforce humanitarian law against criminal governments to prevent the recurrence of atrocities like the Holocaust.
The problem with these efforts is that they were born of a fallacy. This fallacy was the belief that the Holocaust was the result of a procedural rather than moral failure and its recurrence could be prevented by a change of procedure rather than a transformation of values.
At Tuesday's Knesset session, international law professor Ruth Lapidot alluded to this fallacy in explaining that she would not recommend "relying on judges if they come from some of the countries which have already ratified the agreement." These countries include Belgium, which obnoxiously opened and refuses to close its war crimes case against Israel's prime minister; Nigeria, where women are routinely sentenced to death by stoning for unsubstantiated allegations of adultery; and Jordan, where "family honor" killings of women are not considered murder, and whose bar association will disbar any lawyer who refuses to abide by its professional boycott of Israel.
The Rome Treaty opens by declaring, "All peoples are united by common bonds, their cultures pieced together in a shared heritage." But as we see when Hamas chieftain Sheikh Ahmed Yassin explains that Palestinian terrorism will in the end destroy Israel because Israelis place too high a value on life, and when Palestinian mothers encourage their children to become suicide bombers, we do not share common bonds and heritage with our enemies.
So too we found, as Theodore Herzl warned, that when it comes to the Jews, the beautiful rallying cries of European universalism "Equality, Fraternity, and Liberty" do not necessarily apply.
The sad truth is that Israel was founded because of the failure of European slogans. Israel was established too late to defend those who it was originally envisioned to rescue. Our state's very existence in fact is the result not of European procedural failure but of European moral failure. It was a momentary awakening of European conscience that enabled the UN General Assembly to accept the establishment of the Jewish State in the Land of Israel in 1947.
What we see today, as Israel has been and continues to be criminalized in Europe in a manner which echoes pre-Holocaust anti-Semitism, is that the European conscience has again fallen asleep.
The US understands the fundamental moral distortion of a court that would dare to try American nationals in front of a tribunal composed not of their peers, as the US Constitution provides, but by an international community inimical to the very values the court purports to represent. Because of this, the Bush administration rightly gave notice on May 6 that it would not ratify the Rome Treaty in spite of President Clinton's 11th hour signature to the accord.
ough the US remains justifiably concerned that the ICC will exercise its self-proclaimed right to try US nationals despite the US government's refusal to join the court, given the US's financial leverage over the UN, the likelihood of this occurring is remote.
Israel has no such financial leverage, and Israel's increasing diplomatic isolation provides scant tools with which to fight for our rights in international forums.
The only real weapon at Israel's disposal is the justice of our cause. To mitigate the clear danger the ICC manifests to the Jewish state, Israel must combat it on moral grounds. The first step in this direction is for the Israeli government to rescind its signature to the treaty. This signature, proffered by a cynical Barak government on the eve of the 2001 elections, is nothing but an abject surrender of Israel's moral ground. The move came after staunch pressure by EU-backed and now financed Justice Minister Yossi Beilin.
In rescinding its signature, the government must stipulate that it views the present international atmosphere, where the Jewish state is criminalized, as inimical to the values that European governments in particular claim to espouse. Israel should explain, that given the present international hostility towards the Jewish state, it is clear that the international community, as ensconced in the ICC, is morally incapable and unworthy of judging Israel.
Alan Baker, the Foreign Ministry's legal adviser, told the Knesset on Tuesday that Germany and Canada have both promised Israel that they will ensure the already highly politicized ICC will not be politicized in a manner that persecutes Israel. After canceling its signature to the treaty, the Israeli government must hold all governments to this promise. To do so, Israel must threaten and enact harsh diplomatic sanctions against any country that attempts to legitimize in any manner the indictment or trial of any Israeli national by the ICC.
It is very sad that Israel, which worked so hard for so long to see the establishment of the ICC, is now forced to condemn this institution as morally reprehensible. However, the Jewish state, as the embodiment of millennia of Jewish values of justice and law, must accept responsibility for its role as champion of our values first for ourselves, and afterwards for all humanity.
The international community, through word and action, has proven that the only way for Israel to advance its mission is for Israel to heed its own unpopular calling of continuing to be an example of morality and justice for the international community to follow.
Originally published in The Jerusalem Post