By Yochai Guiski

Rep. Ilhan Omar embroiled herself in yet another controversy recently when she asked Secretary of State Anthony Blinken about the United States position on the International Criminal Court, and subsequently tweeted: “We must have the same level of accountability and justice for all victims of crimes against humanity. We have seen unthinkable atrocities committed by the U.S., Hamas, Israel, Afghanistan, and the Taliban. I asked @SecBlinken where people are supposed to go for justice.”

Seeking justice for victims of war crimes is a noble cause. As the grandson of Holocaust survivors, whose family endured some of the worst the Nazis could devise, making sure those who perpetrate crimes against humanity are brought to justice touches upon a powerful personal and national experience.

But this is as far as my agreement with Rep. Omar goes. The rest of her underlying premise about seeking justice in the international arena is highly questionable. As I am not qualified to talk about the U.S. experience, I will instead focus on the Israeli one.

For starters, her claim that she has not seen any evidence that Israeli courts “can and will prosecute alleged war crimes and crimes against humanity” is inaccurate to say the least. Israeli courts, and especially Israel’s Supreme Court, have heard thousands of cases of Palestinians who claimed they were wronged by the Israeli authorities. In many cases the courts intervened, changing a would-be course of action by the state, provided restitution, or even led to a rethinking of policy. Not all cases are heard and not all claims are accepted, but many, if not all significant legal cases are brought to judicial review.

In addition, Israel has another mechanism - the formation of commissions (by the government or the parliament), which have the authority to summon witnesses, examine evidence, report publicly (with confidential annexes) and make recommendations (some of which may be binding). For example, The Public Commission to Examine the Maritime Incident of 31 May 2010 (The Turkel Commission) was tasked with addressing “Israel’s Mechanisms for Examining and Investigating Complaints and Claims of Violations of the Laws of Armed Conflict According to International Law”. The committee’s recommendations were mostly adopted and enhanced the way Israel deals with its compliance with International Law.

But that is only part of the issue, as one needs to look at the “justice” mechanisms that the international community applies to Israel:

·     When Israel pioneered the use of drones in counterterrorism operations to apply force accurately and reduce civilian injuries and deaths, it was accused by UN rapporteurs and many international human rights groups of extrajudicial killings.

·     When the International Court of Justice (ICJ) was tasked by the UN General Assembly to address the legality of the barrier Israel was building around the West Bank and in Jerusalem, the Court overwhelmingly found it to be illegal, and even went as far as denying Israel’s right of self-defense under Article 51 of the UN charter (ostensibly since “Palestine” was not considered a state at the time). The only dissenting voice was the American judge Buergenthal who dissected the decision and showed the glaring flaws in adopting sweeping findings based on little factual basis.

·     On that matter, detractors of Israel have claimed that Israel could have built the security barrier on its own territory and thus avoided the problem. Furthermore, they used that logic to “prove” Israel was just executing a land grab. However, if one looks to Israel’s northern border, that was exactly the course of action that Israel took when it built the security technical fence south of the “Blue line”, the internationally recognized border between Israel and Lebanon, within its own territory. The outcome of the decision was claims from the Lebanese side that Israel was violating its sovereignty every time Israeli forces crossed the technical fence, including an incident in 2010 in which an Israeli officer who was on a mission to cut a tree near the fence was shot dead. So, Israel cannot win no matter where it builds a security fence.

·     The UN Human Rights Council (UNHRC) has singled out Israel for scrutiny (including its infamous Item 7, a permanent agenda on Israel, and the only one devoted to a specific country), while taking little notice of flagrant human rights violators across the world. To that extent the HRC has commissioned “Fact Finding Commissions” after every escalation in Gaza, which were almost exclusively tasked with evaluating Israel’s actions, while the actions of terror groups operating out of Gaza were pursued far less rigorously. And even putting at the head of its investigation into the 2014 Gaza war, a Canadian academic who had previously done work for the Palestinian Liberation Organization, and later resigned after the conflict of interest was revealed.   

But the International Criminal Court seems to take things even further:

·     When the Comoros Islands asked the court to examine the incident aboard the “Mavi Marmara”, the Prosecutor’s Office declined to open an investigation on the grounds of “gravity” (the alleged crime was not of the severity that requires the intervention of the court, as it was a single incident in which 9 people died). In an unprecedented move, the judges of the court challenged the prosecutor’s independence and ordered its office to reevaluate its position on not going forward with a prosecution. The prosecutor eventually reaffirmed its decision on the matter, but the proceedings dragged on for several more years.

·     On the Palestinian issue, the prosecutor (and eventually the court) decided to recognize Palestine as a state and accept its accession into the “Rome Statute” based upon the non-binding decision of the UN General assembly on the matter. The prosecutor than decided to open an investigation into the situation in the West Bank and Gaza (including Jerusalem) on its own.

So which kind of justice is preferred? The kind that makes sweeping findings with little factual evidence to support them, the kind where you single out a country for scrutiny while taking little stock of the actions of its enemies, the kind where the judges urge the prosecutor to press charges, the kind where application of the law is based on flimsy grounds but is politically popular?  

From the above precedents alone, there is compelling evidence which shows that looking for justice in these places is neither just, nor fair, and that in most cases robust, independent, and professional judiciaries who are scrutinized by democratically elected officials is the best remedy. It may not be perfect, but it is far better than the alternative.  

LT. Col. Yochai Guiski is a 23 year veteran of the IDF. He retired in 2020 as a Lieutenant Colonel after serving in the Israeli Military Intelligence. Yochai served in various roles including: Coordination of Government Activities in the Territories (C.O.G.A.T.), Strategic Planning Division and the Ministry of Defense (politico-military directorate). Read full bio here.