Last week, international media reported that US President Joe Biden had ordered the US administration to share evidence with the International Criminal Court (ICC) in The Hague regarding Russian war crimes in Ukraine. Anyone familiar with the American attitude toward the ICC knows that this is an unusual event. Truth? He should bother us. The reason for this is simple.
Reuters
The Americans have been boycotting the court for years, claiming that it has no authority to try citizens of countries that are not members of the Rome Statute (which in effect established it). Since the Americans are not members of the treaty, in their view, the ICC cannot investigate and judge American soldiers.
Unintentional American Legitimacy
The current incident is seen as unusual because the Russians are also not members of the treaty. And in fact, unusually, the ICC is gaining American legitimacy here, ostensibly deviating from its own policy. Even if this is only a specific exception, it has possible implications for another country that is not a signatory to the Rome Statute: Israel.
Israel's attitude toward the ICC is complex. It is possible to give an entire seminar in international law and not fully understand it. But in general, Israel also does not recognize the court's jurisdiction over its citizens. The court, for its part, was reluctant to adopt the Israeli position. Cases that give him legitimacy to ignore it – such as the current case – may challenge us greatly.
International Court of Justice in The Hague, Netherlands, photo: None
Still, even in a world in which the ICC ignores the Israeli position and decides to investigate the case of an Israeli soldier, we have an effective defense mechanism. It is hidden in an important article of the Rome Statute, which says that the Court will deal with the case before it only if the relevant State is unwilling or unable to investigate or prosecute on its own.
The Israeli legal system has an excellent reputation in the world. The Israeli military respects the laws of war and, when necessary, knows how to investigate itself and handle appropriate cases. It's hard to say that we don't want or can't handle situations that raise suspicions of violations of the laws of war. This fact provides a critical legal shield for IDF soldiers around the world.
The problem - the wrong message
So what's the problem? This is exactly where proposals made in recent years to grant immunity to IDF soldiers from investigation or prosecution come into play. Unintentionally, they may lower this defense mechanism as well.
Judges of the International Court of Justice in The Hague,
The purpose behind them may be good. They are meant to express appreciation and love for the soldiers, and to enable them to protect us without fear. But in the test of results, they achieve the opposite effect. They send a message to the world that our soldiers have a blank check, and that our system can't really investigate or judge them in extreme cases that require it.
Such a message will be in addition to the criticism emerging today in the international community of the legislation of reasonableness and independence of the Israeli judicial system. And internally, such initiatives send the wrong message of lack of rule of law and lower commitment to orders from the command echelon.
Police outside the International Criminal Court in The Hague,
The need to back up soldiers is important and understandable. But the way to support them is not by exempting them from liability by default, which would leave them legally exposed abroad.
With the ICC's growing legitimacy to investigate citizens of countries that are not members of the Rome Statute, along with domestic proposals to grant immunity to soldiers, the ICC is concocting a cocktail that may have been created with good intentions, but leads to a hell of legal trouble.
Wrong? We'll fix it! If you find a mistake in the article, please share with us