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(This is a translation of a Hebrew article written by Nitsana Darshan-Leitner on nrg.co.il, the online edition of Israel HaYom)
April 12, 2015
Beginning at the end of World War II, the world had considered setting up the International Criminal Court, a court of consensus with substantial powers that would demand justice and seek retribution on behalf of the poor and oppressed worldwide.
When the Rome Statute was signed, creating the basis for the ICC, the U.S. and Israel did not join. Even then the two countries were quite concerned about the ICC and determined not to ratify the agreement and to accept its rulings as binding.
The U.S. even passed a decisive and uncompromising law, which became known as the Hague Invasion Act. The law prohibited transfer, both direct and indirect, of information to the court in The Hague. Among other things, the law set out a mechanism by which national-security agencies could intervene in the event that U.S. citizens were arrested by order of the court.
What has prompted strong opposition from the two countries and others? A clue to the answer lies in the ICC website. Under the headline "All Cases," the website lays out the nations under investigation for war crimes and the cases that have been opened against them.
Here's the list: the Democratic Republic of Congo, the Central African Republic, Uganda, Sudan, Kenya, Libya and the Ivory Coast.
All except one are African countries. While it's hard to argue that the human-rights situation in Africa is among the good ones, couldn't the court have found other countries whose actions bear investigation?
Or perhaps the answer lies here: Africa is the world's battered child, home to its weakest countries, the farthest from the plate, as if no one cares about its position or thinks to develop it. Africa is the corner of the world about which no one is concerned and it's the easiest to blame.
Question marks about the system
These days more and more countries see no hope for this child. They doubt that this is the court that will demand justice for Africa. Question marks hang over the mechanism that is supposed to deliver equal justice for all. That seems to be the understanding of every Syrian boy whose brutal killing has gone unavenged and every North Korean who sacrifices his life as a dissident against the regime. And that's probably the life experience, if one can call it that, of every Yazidi girl who was raped, killed or taken prisoner. This court will not be the source of their salvation.
And the Islamic State, its friends, all the other terror organizations and the nations that support terror and deny human rights feel exactly the same way.
Concern is increasing that the ICC does not meet the standard that was expected of it when it was founded: to serve as the voice for everyone. The world community is obligated to seriously discuss the nature of international law. And it must assess whether that law is relevant and provides answers in line with its stated purpose or whether over the years it has become a tool of political attack instead of a source of inspiration and justice.
International law has no binding legal authority and hardly any operational authority. So who enacted this amorphous law? In principle the nations of the world did, but the rules that established the international court also created room for broad interpretation of the laws.
What is a war crime? What are crimes against humanity? What is the ICC's authority? Is terror a crime under international law or is it a legitimate battle tactic? Is it fair to view a wartime attack against civilians who are located in conflict zones as a war crime? Or is the war crime created when military targets are positioned near civilian populations?
These questions and many more will be discussed in detail at a conference, "Towards a New Law of War," sponsored by Shurat HaDin – Israel Law Center on May 4 and 5 at the Dan Jerusalem Hotel.