Why the Threat of International Prosecution is both False and Harmful
In two recent articles in Maariv and Israel Hayom, Adv. Avraham Shalev and Prof. Eugene Kontorovich reiterate the main points outlined in the Kohelet policy paper Judicial Reforms and the Threat of International Criminal Court Prosecution.
In the Maa’riv piece, Shalev responds specifically to Adv. Yechiel Gutman, who alongside many others have made the claim that continuing to carry out the judicial reform will expose IDF soldiers to criminal prosecution by the ICC (the The International Criminal Court in The Hague) .
This claim is doubly false:
Firstly, the ICC according to its own precepts has no jurisdiction over Israel, and its attempts to weigh in on the “situation in Palestine” are illegitimately political, a stance which Israeli governments both left and right have staunchly maintained for years.
Secondly, even had the ICC jurisdiction, the particulars of the judicial reform would have no impact at all on their decision to prosecute. The ICC only investigates in cases where a country will not or can not prosecute on its own. Not only does the proposed redress of Israel’s imbalanced judicial system have nothing at all to do with the Israeli criminal justice system – which is the system in question in relation to ICC investigations of IDF soldiers – but the proposition that the reform would render our judiciary inadequate according to international standards is absurd, as such a proposition would implicate most ICC member states’ judiciaries as inadequate.
The only actual connection to reality the claim has is the risk of granting the ICC credibility and legitimacy in its persecution of Israel by the very claim that they can or will prosecute IDF soldiers because of the reform.
Instead of seeking to protect IDF soldiers on the international stage as they self righteously portray themselves to be doing, such claimants are actively undermining said soldiers’ defense against illegal ICC investigations.