Haaretz’s Anshel Pfeffer writes a typical “happy-talk” article, Israel Has Little to Fear from International Criminal Court, about a visit to Israel by former ICC chief prosecutor, Luis Moreno-Ocampo. In the interview, Pfeffer displays a strong distaste for the ICC; or at least profound skepticism for its mission. This is, of course, a standard attitude among Israelis who are deeply hostile toward international institutions, since they know how far below international standards Israel falls in so many areas of human rights and freedoms.
But what truly surprised me was how little Ocampo knows about Israel’s legal system. Considering he is an international jurist, you’d think he’d know even a tiny bit about the way Israel works. Here are a few ‘words of wisdom’ from Ocampo:
Last week, on his first visit to Israel, Moreno-Ocampo was full of praise for the local legal system and eager to point out that joining the ICC could backfire for the Palestinians. “Being here in Israel is not liking talking about international justice in Boston or Sweden,” said Moreno-Ocampo, who was here as a guest of the Fried-Gal Transitional Justice Initiative at the Hebrew University of Jerusalem’s law school. “The issues here are not academic.”
But he isn’t at all sure that if the Palestinian Authority were to join the ICC — or if Israel were to join, for that matter — the international court would actually play an active role in the conflict.
The ICC’s job is to investigate and prosecute only in cases in which the local legal system is not performing. “In a dictatorship they can make you disappear and kill you,” said Moreno-Ocampo. “But here, even if the situation is awful, you cannot disappear; you have the rule of law.”
…For the ICC to rule on Israel’s activities, he said, “the Palestinians have to prove that the [Israeli court’s] decision was to shield the defendants. They would have to prove that it wasn’t a fair proceeding.”
That penultimate paragraph is worth unpacking. He is right in saying that the ICC only acts if a national court refuses to accept cases. And that is precisely what happens in Israel. There are security cases alleging torture before the Supreme Court which have been outstanding for years. Even when the Court renders decisions it invariably sides with the State against the rights and interests of the victims (almost always Palestinian). And even when it doesn’t and does side with the victims (as in the decision which forbids torture except in certain cases), the security forces essentially ignore the court ruling (as the did in the case which Anat Kamm brought to Uri Blau, which got both of them charged with treason).
What Ocampo misses is that Israel has a semblance of a legal system when it comes to national security cases, not a real one. This is precisely the circumstances under which an international mandate should kick in. No Israeli court would ever hear a war crimes charge against an Israeli official. None. Not ever.
Further, the ex-prosecutor’s last sentence in that paragraph cries out for rebuttal. In Israel, despite it’s purported rule of law, people disappear regularly. Anat Kamm was disappeared for weeks and only her family and lawyer knew she’d been arrested by the Shabak. Just a few weeks ago, the Shabak arrested and disappeared Majd Kayyal, an Israeli Palestinian journalist. It was only the exposure by this blog and Noam R, an Israeli blogger, which forced the Shabak to admit he was detained, and later to release him with the most serious of the (laughable) charges against him dropped. Not to mention Ben Zygier, the Prisoner X who committed suicide before anyone even knew he was jailed. Or Prisoner X2, a former Mossad agent whose name no one knows. Every time Israel arrests anyone for security offenses (and it does so regularly) they are arrested in secret and under gag. So yes, Mr. Moreno-Ocampo, people do disappear in Israel. The fact that most eventually turn up (some years later) is no defense.
I find unfathomable the Israeli certainty that the fact that Palestinians might find themselves sitting in the Hague would deter the PA from trying to join the ICC. Of course, there will be Palestinians in the Hague. But for every Palestinian there there will be ten Israeli generals, prime ministers, and defense ministers. That little fact is the one Israelis like Pfeffer forget. Remember there are six Palestinian civilians killed for every Israeli civilian killed. That tells you something of the scale of the ICC charges that could be brought against Israel. Who do you think the world blames more for the indiscriminate killing? Palestinians? Please, get real.
Finally, the visits to Israel by international luminaries like Ocampo serve an important purpose in anesthetizing Israeli public opinion from any moral responsibility for their nation’s crimes. This is why BDS is so important. Figures like Ocampo, when they visit Israel, in effect are prejudging the issues which might come before the ICC. His job, even as former chief prosecutor, is to support the court, not to reassure Israelis that they will never have to face it.