Now that the Senate impeachment trial of Donald Trump has ended in an acquittal that left many feeling that justice was undone, we can get back to actual courtrooms where judges are wise, attorneys are honest, witnesses are truthful and jurors are always unbiased.
You know . . . the way legal systems operate ordinarily.
Like, for instance, the recent decision by the International Criminal Court (ICC) that it has jurisdiction over the West Bank, East Jerusalem and the Gaza Strip for the purposes of adjudicating war crimes purportedly committed by Israel against the Palestinians. (Theoretically, this jurisdiction also extends to violations committed by Hamas in firing rockets indiscriminately at Israeli civilians. But the chances of that investigation occuring are lower than President Trump acknowledging that he didn’t really win this past election in a landslide.)
Remember the ICC? It was established in 1998 to prosecute heinous atrocities committed by individuals living in lawless, anti-democratic societies where genocide and crimes against humanity go unpunished. Initially, the Clinton administration voted against its formation, and ultimately refused to seek Senate ratification, a policy that his successor, George W. Bush, continued.
The United States was not alone in severing any affiliation with a court that even kangaroos have the good sense of hopping away from. Among superpowers, Russia and China have declined membership. And Israel, along with 16 other countries, decided that there are more fruitful ways to kill time whenever the ICC is in session.
Given its mandate to prosecute individuals, there was little doubt that it was yet another biased, politicized body dominated by dictators and despots who wished to haul American and Israeli presidents, prime ministers and military leaders before the dock, holding them to legal standards none of these other nations would ever insist upon for themselves.
The court was located at The Hague, but the justice it would dispense there better resembled the contorted courtrooms of Kafka’s hellish dreams.
Think I am exaggerating? Well, the ICC has refused to investigate the Chinese persecution of Muslim Uighurs, the ISIS bloodlust of beheadings, and the genocide in Syria. The 22 prosecutions the ICC has thus far undertaken has resulted in just six convictions. In 2020, ICC judges called for an investigation into the alleged war crimes by the United States in Afghanistan. The Trump administration laughably denounced the Court and revoked the visa of its prosecutor.
This latest injustice against Israel was inevitable. Judging by Israel’s treatment at the United Nations, had the Jewish state accepted the jurisdiction of the ICC, all other investigations would have been dropped and the docket cleared for a continuous deluge of indicted Israelis.
As of 2016, the United Nations Human Rights Council has condemned Israel with 68 resolutions out of 135 in total. Since the Council’s creation in 2006, actions taken against Israel exceed all the world’s nations combined.
Since the Human Rights Council’s creation in 2006, actions taken against Israel exceed all the world’s nations combined.
In the United Nations General Assembly, from 2012 through 2015, 97 resolutions were adopted, 83 of which against Israel. In 2017 alone, 21 out of 27 resolutions denounced Israel. In 2016, 20 out of 26. Iran, Syria, North Korea, Myanmar, Crimea—all just once.
UNESCO passes ten resolutions a year criticizing Israel. Among its many denunciations is that Jews have no ancestral, historic connection to the Holy Land. Other than Syria, just once in 2013, no other nation has been the subject of a condemning resolution.
And you thought the Senate impeachment trial was political?
Recognizing this chronic anti-Israel bias for what it was, former UN Ambassador for the United States, Nikki Haley, called the Human Rights Council and UNESCO “corrupt cesspools,” and withdrew American financial support and membership—a demonstration of moral clarity and solidarity with the lone democracy in the Middle East.
The Biden administration has already announced that it plans to rejoin the Human Rights Council.
Either a court is authorized to adjudicate claims against an individual, or it isn’t. The Trump impeachment trial involved this procedural question, which the Senate decided in its favor.
Israel is not a signatory to the ICC. The Palestinian Authority joined the ICC in 2015 as a nonstate member—even though the jurisdiction of the ICC extends only to member states. Palestine, for the time being, is not and has never been a state. Moreover, jurisdiction does not apply to nations that have independent judiciaries capable of prosecuting atrocities.
No honest broker of peace can say that the Palestinians—led by terrorists and not statesmen—have proven themselves ready for statehood. Israel’s never-ending defense against Palestinian terror is, most assuredly, not a violation of international law. ICC intervention was always meant to investigate atrocities, not acts of lawful national defense. Finally, with a fully functioning and independent judiciary that has convened court martials since Israel’s inception, the ICC’s mandate has no role in Israel’s affairs.
Member states of the ICC, such as Germany, Hungary, Canada, the Czech Republic, Austria, Australia, Brazil and even Uganda, informed the court that it has no authority to intervene in the Arab Israeli conflict.
Palestinians have always been playing the long game: The world will one day hand all of Israel over for its homeland. No reason to engage in direct negotiations. In due time, global anti-Semitism, the moral bankruptcy of the Boycott, Divestment and Sanctions movement, the shameless hypocrisy of the United Nations, and the toothless legal might of the ICC, will combine to do all the work for them. No need to renounce terror or announce that it is prepared to be a good neighbor of Israel.
All that inestimable Palestinian patience, and the naive expectation that their fate is in the hands of nations that hate Jews even more than they do, will not be rewarded by this ICC ruling. After all, most people realize that the United Nations is just a glass slab on the East River of Manhattan filled with make-believe diplomats whose only accomplishment is far too many unpaid parking tickets. And the ICC at The Hague are just jurists speaking double Dutch, their courtrooms given over to con games.
Thane Rosenbaum is a novelist, essayist, law professor and Distinguished University Professor at Touro College, where he directs the Forum on Life, Culture & Society. He is the legal analyst for CBS News Radio. His most recent book is titled “Saving Free Speech … From Itself.”