The ruling last week by two judges of the International Criminal Court (ICC) endorsing the prosecutor’s jurisdiction over Israel, which is not a state party to the ICC, and “Palestine”, which is not a state, was hardly a surprise. The cynical strategy of using the ICC and vagaries of international law to wage political war was developed more than 20 years ago, and has powerful backers.
If anything, the surprise is that it took so long.
Although these developments are distressing, it is very unlikely that Israelis will actually be arrested or stand trial in The Hague. The actual threat is from adding to the demonisation of Israel as a country of war criminals, deserving of international isolation. These labels, in turn, reinforce incitement and contribute to violent attacks against Israeli and Jewish targets in the name of justice and international law.
This form of lawfare was launched in September 2001, when officials from 1500 non-governmental organizations (NGOs) claiming to promote human rights joined stalwarts like Yassir Arafat at the UN Conference on the Elimination of Racism, which took place in Durban, South Africa. They adopted a declaration accusing Israel of war crimes, genocide and ethnic cleansing. Cynically copying the language and tactics used against the South African apartheid regime, they called for the “complete international isolation of Israel.”
For the twenty years that have followed, these powerful anti-Israel groups joined with Palestinian leaders in consistently pursuing this goal. Their script is entirely predictable — Palestinians launch terror attacks, Israel takes counter-measures to protect its citizens, and these actions are denounced as war crimes. The template was established at the end of March 2002, a few months after Durban. Following horrendous terror attacks, the IDF took control of the suicide bomb hub in the Jenin refugee camp, losing 23 soldiers. Palestinian officials immediately accused Israel of war crimes and a massacre, and these false claims were echoed by NGO officials. The false claims were then quoted by journalists, diplomats and UN officials without any fact-checking.
This strategy has been repeated many times, including during the 2006 Lebanon conflict, and in the Gaza wars between Hamas and the IDF. Each cycle linked Israel with “war crimes”, creating momentum for action by the ICC. This was also the main motivation behind the 2009 UN Human Rights Council investigatory commission on Gaza, led by Judge Richard Goldstone. His 500-page report, consisting of unsupported and largely fictitious NGO accusations, called for action by the UN Security Council, which would have opened the path to the ICC.
Goldstone eventually acknowledged that the report bearing his name was a travesty, and that the allegations were false. While his turnabout did not undo the damage, it slowed the ICC campaign for a short period. But with more terror attacks, along with the Israeli responses, the efforts resumed. ICC prosecutors received the “evidence” delivered by Palestinian officials and the NGO network, and in 2015, the Palestinians officially joined the court (claiming to meet the criteria for a state party). The current prosecutor, Fatou Bensouda, then began to move forward towards a formal investigation.
This long journey aimed at using the ICC to implement the Durban goal of “the complete international isolation of Israel” was led by powerful ideological groups whose leaders have a particular obsession with Israel, and whose repertoire includes antisemitic themes. These include Human Rights Watch, Amnesty International, and the Paris-based International Federation of Human Rights. Without their leadership, the campaign would not have been sustainable.
These NGO superpowers are accompanied by numerous well-financed Palestinian groups, including some linked to the PFLP terror organization, which were established precisely for the purpose of waging lawfare. Many are provided by European governments, in order to weaken Israel, and at least in theory, advancing the cause of peace. Millions of Euros, krona and Swiss francs have been given to the NGOs explicitly for the documentation of Israeli “war crimes” and similar accusations. The failure of the Israeli government to confront the funders and to stop the flow of NGO funds for the ICC campaign has allowed it to continue.
Perhaps the recent developments, which open the door to investigations of individual Israelis and labeling them as war criminals, will spur the government to take effective action against NGOs and their funders. In parallel, a strong effort to cut or condition state funding for the ICC on reversing the politically motivated targeting of Israeli, British, and American officials can also make a difference. Both NGOs and the ICC need budgets to function and this is their primary vulnerability.
Gerald Steinberg is professor emeritus of Political Science at Bar Ilan University and president of the Institute for NGO Research, in Jerusalem
