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The ICC's Decision Not to Investigate the U.S. in Afghanistan

(Jerusalem Post) Alan Baker - On April 12, 2019, a pretrial chamber of the International Criminal Court rejected a request by the ICC prosecutor to proceed with an investigation of alleged crimes against humanity and war crimes by American military and intelligence professionals who served in Afghanistan. Clearly, this decision has important implications regarding the general functioning of the ICC and of its prosecutor in their handling of requests to open investigations against Israel. Many requests and complaints are regularly submitted by the Palestinian leadership to the prosecutor, alleging crimes by Israeli military personnel and political leaders. The court is being abused or manipulated by the Palestinians as part of a political campaign of delegitimization of Israel, and, in fact, the Palestinian leadership appears to have adopted the ICC and its prosecutor as its own "backyard" tribunal for harassing Israel, its leaders and military. In light of the important jurisdictional and substantive issues set out in the decision by the pretrial chamber regarding the Afghanistan case, the ICC will need to review a number of significant points regarding the Palestinian referrals regarding Israel. Since the ICC's Statute is open to "states parties" only, the assumption that there exists a Palestinian state is wrong and legally flawed, and thus cannot constitute grounds for accepting referrals of Palestinian complaints. Moreover, the ICC cannot agree to the Palestinian demands that it establish its jurisdiction over territory that is the subject of an ongoing peace negotiation process based on the Oslo Accords. The writer, former legal adviser and deputy director-general of Israel's Ministry of Foreign Affairs, participated in the negotiation and drafting of the Oslo Accords with the Palestinians.
2019-04-23 00:00:00
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