Shortly following her visit to South Africa, Angela Merkel’s government made a shocking announcement in defense of Israel’s horrendous record of serious human rights violations. Germany took the shameful form of undermining International Law by contesting the Hague’s jurisdiction, claiming that the International Criminal Court (ICC) lacks the authority to investigate Israel’s war crimes against Palestinians.
In a petition filed with the ICC, Merkel’s government requested to be “a friend of the court” (amicus curiae) in an attempt to prevent the Hague proceeding with charges against the Netanyahu regime. After long periods of procrastination, ICC Prosecutor Fatou Bensouda finally announced in December that there is reasonable basis to probe Israel’s actions.
She however left a gaping hole which is being exploited by Israel and allies such as Germany. Bensouda requested The Hague to decide over the question of jurisdiction, which has the potential to sidetrack and undermine any possibility of prosecuting and punishing the settler-colonial regime’s war criminals.
This despite the Prosecutor’s Office insisting that Israel has demolished Palestinian properties, forcefully evicted Palestinians from the Occupied West Bank and East Jerusalem. Bensouda also included in her indictment war crimes committed in Occupied Gaza during 2014’s Operation Protective Edge. In addition Israel’s operation to evacuate Palestinian residents of the Bedouin village Khan al-Ahmar and construction of settlements in the West Bank.
Merkel’s injudicious decision to side with Israel gives credence to Netanyahu’s attack on the ICC. In a recent interview on a Christian television network, Israel’s leader who has been indicted for fraud and corruption charges, falsely claimed that the ICC is in a “full frontal attack” on Jews and brazenly called for sanctions on The Hague.
Germany’s argument in its petition sounds like a “copy and paste” of Israel’s which claims that the ICC’s jurisdiction does not extend to Occupied Palestinian Territories as Palestine is not a state. Strangely, this ignores the fact that Palestine is a signatory to the ICC’s Rome Statute. Not only is it disingenuous of Germany to disregard Palestine’s rights, by attempts to mislead the ICC the Merkel government legitimizes Israel’s seven decades of dehumanization of Palestinians.
While Merkel’s “toenadering” with Netanyahu may be seen by some as a boon to him at a time he faces prospect of jail time, for Palestinians it clearly says that Germany has betrayed their legitimate and just cause for justice. How else are the aggrieved families of martyrs to interpret Merkel’s colossal unjust petition which claims that the ICC has no authority to even discuss whether Israel committed war crimes?
That Germany is one of the main member states of The Hague Tribunal, it has an unfair advantage to influence an outcome that will prejudice Palestinian demands for justice. Merkel’s blatant decision to side with Netanyahu is thus an abuse of power due to its privileged position in the hearings. Latest reports indicate that in addition to Germany, Israel is intensely involved in recruiting many countries to argue on its behalf as “unofficial proxies”, as itself has opted not to participate in order to “avoid conveying legitimacy” to the ICC. Hungary and the Czech Republic along with Austria, Australia and Canada have all come on board to support Israel’s impunity.
Although prosecutor Bensouda believes that Palestine is “enough of a state” for the purposes of transferring criminal jurisdiction over its territory to The Hague, her request to have this view tested may derail the investigation given the legal battle over definition of what constitutes a “state”.
The attack on the ICC with calls by Netanyahu to sanction it, comes on the heel of the release by the UN of a list of 112 companies with ties to Israel’s illegal settlements. And in the same unethical vein, the apartheid regime has attacked the UN Commissioner as a partner and tool of the BDS (Boycott, Divest and Sanctions) movement.
Siding with Israel to whitewash horrendous crimes against Palestinians, may allow Merkel to escape Israel’s wrath, but doing so places Germany on the wrong side of history – yet again! While it appears to be incongruous for Germany and a handful of countries to prevent the exercise of justice by The Hague – which is what it was set up to do – it is true that as far as Palestinians are concerned, siding with Israel allows the rogue regime to continue committing war crimes and violations of international humanitarian laws.
And doing so with the full knowledge that the backing it enjoys from the Trump administration and the soft landing provided by Germany, immunizes it from accountability, neutralizes prosecutorial processes and denies justice for Palestine.
Some commentators have rightly argued that this preposterous defense of Israel’s widespread criminal conduct may result in a death blow for the ICC. The fear expressed is that the action by Chancellor Merkel is shortsighted for by creating a legal black hole in the Occupied Palestinian Territories may result in destroying a badly weakened ICC.
Israel hopes that by twisting the facts and shifting the ICC’s goal posts, it will emerge unscathed. It’s hopes are pinned on Chancellor Merkel as the leading European leader to divert The Hague from its task by engaging it on frivolous legal semantics such as “jurisdiction” and disputing Palestine’s ratification of the Rome Statute.
While international jurists will be Occupied (pun intended) in debating legal concepts, it behoves countries such as South Africa to raise their voices against futile legal red herrings. Silence in the face of this manufactured legal impediment will be construed as failure to uphold and defend Palestinian human rights.
Iqbal Jassat is an Executive Member of the: Media Review Network based in Johannesburg, South Africa.