Israel Sees ICC As Another 'Israel-Bashing' Arena

By Julie Stahl | July 7, 2008 | 8:11 PM EDT

Jerusalem ( - Israel has decided not to sign onto the treaty creating the International Criminal Court, fearing Arab states will use the new forum to clobber Israel.

On July 1, the ICC - located in The Hague - is supposed to start accepting complaints against individuals accused of genocide, crimes against humanity, war crimes and aggression. Judges and prosecutors will be chosen by the end of 2003, after which the trials can begin.

Ironically, terrorism is not included in the list of international crimes over which the ICC will have jurisdiction. That's because drafters of the treaty could not agree on a definition of terrorism.

Israel's Attorney General Elyakim Rubinstein said Israel will not ratify the treaty but has "nothing to hide."

Foreign Ministry legal advisor Allan Baker said that Israel was among the first to suggest the idea of an international criminal court decades ago - "to fight impunity for people who carry out crimes against humanity."

As such, it was incumbent upon Israel to sign the treaty bringing the ICC into force, he said. But Israel decided against ratifying the treaty, something that would put Israel under the ICC's jurisdiction.

"We're in a genuine dilemma," Baker said in a telephone interview. "We think it's an honorable, genuine institution, [but] what worries us is the danger of politicization."

The idea of a treaty was first initiated some 50 years ago following World War II. It was shelved a short time later, with the advent of the Cold War, when the U.S. and the former Soviet Union couldn't agree on a definition for crimes against humanity.

After the end of the Cold War, the treaty was taken off the shelf and the text was finalized at a conference in Rome in 1998.

The problem for Israel was that during the conference, representatives from Arab states added various political provisions to the statutes, Baker said.

For instance, in the list of war crimes - along with rape, shelling of civilians and torture - Arab states inserted an article about transferring people to occupied territory. Although it does not name Israel specifically, the article was drafted in such a way that it clearly applies to Israel, Baker said.

The Palestinians accuse Israel of war crimes for having built Jewish communities in the Gaza Strip and West Bank, lands Israel captured from Egypt and Jordan during the 1967 Six-Day war.

As many as 400,000 Israelis live in those areas where the Palestinians hope to establish an independent state.

Although it is not a war crime to live in those areas, Arab states may try to accuse leaders in the government of "population transfer" based on the Geneva Convention. Israel says the convention doesn't apply.

But a bigger problem for Israel is its struggle against terrorism, Baker said.

"Israel's problem today is, because we are fighting an ongoing war against terrorism," [military actions] could potentially be interpreted as war crimes in cases such as Jenin."

During the month of April, Israel mounted a massive military operation in Palestinian Authority controlled areas following a series of deadly terror attacks that killed more than 100 Israelis in a month. Israel went into Palestinian-controlled areas to arrest wanted militants and destroy the terrorist infrastructure imbedded in the areas.

In the Jenin refugee camp, Israeli troops fought pitched battles against gunmen, who had extensively booby-trapped the camp and refused to surrender.

Following the fight, Palestinians accused Israel of war crimes and committing a massacre - an accusation that was never substantiated by any relief or human rights group that later entered the camp.

Although the Palestinians will not be able to bring formal accusation against Israel as long as they are not a country, the Arab states, even if they do not ratify the treaty, can still bring complaint to the court.

"There are indications that Arab [states] intend to use the court to fight against Israel," Baker said. The Arab League has appointed a committee, which is already preparing a list of Israelis to be prosecuted, he added.

Israel is not the only country that is wary of the possibility of the abuse of the court. Of the 127 countries that signed the Rome Constitution, only 67 have ratified it.

None of the Arab states have accepted it except Jordan, Baker said. And others such as the U.S., Australia, China, Russia, Turkey and Japan have all pulled back from ratifying the treaty.

"A lot of States want to wait and see what happens," Baker said. A lot of the European countries, which have already ratified the treaty, are concerned that the court could be used politically, which would harm the judicial nature of the court, he added.

It will depend on who is appointed as judges and prosecutors, he said. "We can only hope that they won't make the mistake of [becoming] a U.N.-style Israel-bashing forum," he said.

E-mail a news tip to Julie Stahl.

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