NZFOI: This article is a great background resource, as the ICC investigation into allegations against Israel gathers momentum.

Fundamental to the rule of law is equal treatment and non-arbitrary, fair application of law. Instead, the International Criminal Court (ICC) exemplifies UN politicisation of international law principles and bureaucratic corruption of the rule of law, at extravagant cost.

On 30 April 2020, the prosecutor of the ICC filed a response to the submissions of amici curiae, victims, and States participating in Court processes in the “Situation in Palestine.” The response provides insight into the struggling Court’s betrayal of its fundamental role of protecting the rule of law.

The ICC is a UN agency  that was established in 2002 to prosecute the most heinous international crimes  where there is no national court that can do so. With convictions in only four cases in 18 years, it is doubtful that potential offenders are deterred. The eight convictions have all been for crimes in Africa where national courts were notionally unable to prosecute. Due to its prosecutions exclusively of Africans, a collective move (later suspended) by African countries to renounce the ICC was debated in the African Union. Ultimately, the ICC is relegated to the role of signalling for the international community that there is no impunity for the gravest inhumanities. In other words, its function is primarily symbolic.

With headquarters in The Hague, Netherlands, 800 staff, and field offices elsewhere, it is expensive to run: over €1.5 billion so far, with increasing annual costs now running at just under €150 million per annum. Australia provided AUD $9.1 million (over €5.5 million) in the 2018-2019 financial year.

More worrying is doubt over what the ICC symbolises in actual practice. Its brand is tarnished: it is a UN body political in essence, defective in execution and undermining the very tenets of law it was set up to protect.

The ICC is constituted under the Rome Statute, in which some elements are overtly political, such as a revised definition of a war crime (Art. 8(2)(b)(viii)) formulated by negotiators in response to pressure from the Arab League to criminalise Israel allowing its own civilians to move into occupied territory . Its amended definition of international aggression (Art. 8bis) is vague, incoherent, and undermines national rights to self-defence. Most UN Security Council permanent members and the emerging global powers declined to sign the Rome Statute. Ideally, formulation of the world’s most heinous international crimes should be unanimous, obvious, clear, and certain.

A more pervasive and corrosive influence than these specific treaty provisions are the political operations of the ICC institutional apparatus. The three central institutions are the office of the prosecutor, the chambers of judges, and the governing assembly of states, all supported by a fourth arm, the registrar. The assembly of states is a political body that, inter alia, appoints court staff partly upon standard geo-political selection criteria. The panel of judges are susceptible to self-interest among political considerations. For instance, an absolute majority of 14 judges decided in plenary session in 2019 that ICC judges can serve as national ambassadors without breach of the court’s explicit statutory requirements that judges not engage in professional occupations or political activity.

The prosecutor is an officer within the court, as in European court systems, and like the judges, is a supposedly politically neutral legal expert. The prosecutor is the most important single person within the ICC and has a fundamental role in selecting and framing cases. The history and conduct of the current prosecutor casts doubt over her office and thereby of the ICC itself. Fatou Bensouda is accused before the Truth Reconciliation and Reparation Commission in her native Gambia of responsibility for torture and arbitrary political detentions, dating back to when she served as district prosecutor and chief legal adviser to Yahya Jammeh, a dictator who initiated a wave of repressive atrocities after taking over the country in a coup in 1994. The need to adjust the UN ICC optics of prosecution by white men of Africans necessitated her appointment as prosecutor in 2012, despite the above history and other concerns.

The prosecutor’s current conduct gives rise to a reasonable apprehension of bias in a major case, namely the investigation of Israel for crimes in the “Situation in Palestine.” Journalists report that the prosecutor maintains close liaison  with figures in the Palestinian Authority. Veteran Palestine Liberation Organization official Saeb Erekat disclosed that he chairs the liaison committee and that it includes representatives of Hamas and the Popular Front for the Liberation of Palestine, both of which are internationally listed terrorist organisations accused of crimes against humanity under the court’s jurisdiction. Despite having  noted  that the Palestinian Authority has “encouraged and provided financial incentives for the commission of violence through their provision of payments to the families of Palestinians who were involved, in particular, in carrying out attacks against Israeli citizens, and under the circumstances, the payment of such stipends may give rise to [UN ICC] crimes,” Bensouda saw no problem meeting with the Palestinian Authority prime minister, Muhammad Shtayyeh — himself a potential defendant. There is no plea-bargaining in the ICC and it is unethical and unprofessional for any prosecutor to collude with potential defendants.

Moreover, although the prosecutor requested a decision from the pre-trial judicial chamber as to whether the ICC has jurisdiction to prosecute Israel, which never joined the court, the prosecutor’s office is reported as having told the Palestinian Authority that it is proceeding anyway with launching investigations of Israeli leaders. It is disingenuous to do so while awaiting the chamber’s decision, especially as the purported reason for requesting it in the first place was to avoid a waste of resources.

This dismal analysis is reinforced by the prosecution’s inadequate responses to participants in the “Situation in Palestine,” submitted on 30 April. The submission capriciously disregards some and is disingenuous in treating other legal issues raised by the amici, merely going through motions. It notes that “silence on a particular point raised by a participant should not be taken as expressing either the Prosecution’s agreement or dissent, the Prosecution is content for the Judges of the Chamber now to decide the matter.” Thus, the prosecutor improperly seeks to deploy judges prior to initiating an investigation as a tactical political cover.

The ICC statute provides (Art. 42(7)) that “Neither the Prosecutor nor a Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground.”   Ample evidence of prosecutorial bias can be found in the prosecutor’s actual request to the pre-trial chamber. Its citations of academic literature are partial: they cite anti-Zionist academics while conspicuously omitting authoritative pro-Zionist academic literature. The submission also retells the conflict history in politically biased terms that implies that it was researched and written by lawyer activists contracted to undertake the task. Their account cleanses any mention of West Bank Arab terrorism or Gaza rocket attacks against Israelis as context for Israeli defence activities.

Ultimately, the ICC is not just another UN institutional vehicle for the political-legal campaign announced by the Palestinian Authority  and the Arab League . The ICC prosecutor is their active collaborator engaged in lawfare. Even though UN policy and executive institutions are politicised by constitutional necessity, and are commonly used as vehicles for narrow national interests, this is a new brazen descent by an international judicial body.

The ICC was meant to symbolise the universal rule of law and the end of impunity. However, in practice it has come to symbolise the opposite. It exemplifies UN politicisation of international criminal justice principles and corruption in dispensation of the rule of law, at extravagant public cost.

Gregory Rose is a professor of law at the University of Wollongong in Australia.

Maurice Hirsch is Head of Legal Strategies for Palestinian Media Watch.

This article is published under a Creative Commons Licence and may be republished with attribution.

By R Lord Jonathan Sacks

The first question Moses asked God was Mi anokhi.  Not “who are you?” But “who am I?”

At a simple level Moses was asking a simple question. Who am I to stand before Pharaoh? Who am I to lead the Jewish people? What makes me worthy of this task? Moses was already showing that aspect of his character that made him the unique leader he became. He was modest, “more humble”, as the Torah later states, “than anyone else on the face of the earth”. He had no sense of personal grandeur, no driving belief in his own destiny. He led not because he thought he was great but because the task was real, the need undeniable, the hour pressing and the call inescapable. He led because God left no choice other than to lead. He had, in Shakespeare’s words, greatness thrust upon him.

But at a deeper level Moses’ query was a different question. Who was Moses? How would a biographer have described him at that point? He was found and adopted by an Egyptian princess, raised in Pharaoh’s palace and brought up as an Egyptian Prince. When, after the events that led to his flight to Midian, he rescued Jethro’s daughters, the report to their father was, “an Egyptian rescued us.” In appearance, manner, dress, speech he was an Egyptian – not Hebrew, an Israelite, a Jew.

Moses’ question, therefore, cut to the core of identity. Perhaps it is a question asked in some form or another by every adopted child. Who am I? Am I the child of those who brought me up? Or am I the child of my biological parents, Amram and Jochabed? Am I an Egyptian or an Israelite? A prince or a slave? Where do my loyalties lie?

In Moses’ case it was no ordinary question. The implications were vast. Was he one of the rulers or the ruled? One of the powerful or powerless? Did he belong to the prosecutors or the persecuted? The alternatives could not have been more extreme. Before him later, on the one hand, a life of ease and honour; on the other, an uncertain fate fraught with suffering and pain.

Nor was it made easier by Moses’ first experience of the Jewish people. Intervening to save one of them from the brutality of an Egyptian taskmaster, the next day he found himself pilloried by the very people to his defence he had come. The first recorded words spoken to Moses by an Israelite were, “who made you ruler and judge over us?” Not yet a leader, he already found his leadership being challenged. It was the first intimation of what was to become a recurring theme of the Mosaic books. The Jewish people is not an easy people.

Perhaps Moses thought he could avoid the question. His flight to Midian was an escape from physical danger. He had killed an Egyptian officer. He faced a capital charge and a warrant was out for his arrest. But it was also an escape from the psychological burden of choice. Midian was neutral space. In Midian you do not have to decide whether you are an Egyptian or an Israelite. Moses was simply – as he said at the birth of his first child – “a stranger in a strange land.” Not an Egyptian or an Israelite but an outsider, someone who could have been either, whose origins were obscure but perhaps no longer relevant.

What Moses discovered, alone with his flocks of the mountain, was that there are choices from which we cannot hide. Almost the first words God says to him are, “I am the God of your father, the God of Abraham, the God of Isaac and the God of Jacob.” God is not here telling Moses who God is. The answer to that question comes later, in one of the most haunting, enigmatic statements and religious literature: Ehyeh asher Ehyeh, “I am who I am.” Or, “I will be who I will be.” In his earlier speech God is not telling Moses who God is but who Moses is. He is the son of his father, the descendant of Abraham, Isaac and Jacob. He is not a prince of Egypt child of Israel. And being a child of Israel, he cannot, may not, be indifferent to their fate.

In a very real sense, Moses is a symbol of our time. New Zealand is our Midian – a place untouched by the tyranny of the Holocaust, the Egypt of the 20^th century. Midian is somewhere else, neutral space, where the question of identity is no longer so pressing, where in the fullness of time a Jew can forget that he or she is a Jew.

Can we? Can we forget and still be honest with ourselves? Today, in an age of post-modernism and deconstruction, there is an assumption that identity is no longer fixed, absolute, given. We can be whatever we choose to be, and for however long or short a time. Cultures are no longer monolithic. We inhabit diversity. We can try out any of the world’s literatures or cuisines or faiths. Already through the Internet – the so-called multi-user domains – we can embark on a series of relationships in fictitious or simulated roles. Virtual reality will make this an even more convincing experience. Post-modern identities, Michel Foucault argued, are not discovered but invented. We are who we decide to be.

But there comes a moment for each of us, as it did for Moses, when the question of Mi anokhi, “who am I?” Is inescapable. There is only one answer. Imagine Moses, having asked the question, hearing the following words by way of reply: “You are whoever you choose to be. You can be an Egyptian and live the life of a prince. You can be a Midianite and spend the rest of your days as a shepherd, untroubled and obscure. You can be an Israelite in exile, dreaming distant dreams. Or you can go back to Egypt and take your place among the slaves. Feel free to choose. Remember: nothing matters except what you want. Don’t let me influence you in any way.”

We know, without having to be told, that this cannot be the voice of God. It is the voice of fantasy, in which nothing exists except our desires. Increasingly we are building a cultural fantasy. Reality is not fantasy. It is that which exists regardless of our choices. Objects are real because they impede our movement. People are real because they have wills of their own. Reality is the world we did not choose to enter. And we discover our place in it, ultimately, by learning who did choose that we should enter it, and why; by reflecting on who our parents are, and where they came from, and what their story is.

That is why Jewish identity is a given at birth – and why Pesach is the oldest and most profound answer to Moses’ question, “who am I?” For I learned who I am by hearing my ancestors’ story and knowing that I am one of its characters. I enter it midway, and whatever I choose will itself be part of that story, and I can opt out of it only at the cost of being false to my past and to myself.

That is the fundamental significance of the Haggadah, and why the seder service begins with questions asked by the child. On the surface, the Haggadah answers the question, “what is this?” What is Pesach, matzoh and maror? But beneath the surface the real question is, “who am I?” The greatest gift we can give our children is to tell them the story of where we came from and who our ancestors were. For we discover who we are, not by an outward journey into the culture and society that surrounds us, but by an inward journey into who gave us birth, and who bore them, and what happened to them to make them what they were.

God gave Moses his identity when he told him that he was a child of Abraham, Isaac and Jacob. The story was his, and the time had come to write a new chapter. In that – no less – is what we give our children on Pesach. “This is your people and it story. Take it and make it yours. A hundred generations have each added their chapter. And there is one which bears your name, and only you can write. This is the past which you are the future. This is who you are.”

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