Why are jihadi international criminals so fond of the International Criminal Court (ICC)?
PLO/Fatah (now better known as the 'Palestinian Authority') BEGGED to be brought under the International Criminal Court’s jurisdiction; when it happened, both Hamas and the PA celebrated it.
The news is full of this item: the ICC has indicted Israeli Prime Minister Benjamin Netanyahu and former Israeli Defense Minister Yoav Gallant for alleged ‘war crimes’ in Gaza.
Lots of people think this means that Israel indeed committed such ‘war crimes.’
But is the ICC an honest court? Or is it a corrupt, kangaroo court?
Pronounce these words: ‘International Criminal Court.’
Sounds important, right? Serious! Like something… good. It’s a court of justice, for one. Justice is good! And it’s a criminal court. One imagines it goes after the worst bad guys. Also, it’s international, which suggests that it brings together the nations—nations that, one dares to hazard, are sending their brightest legal minds there.
That sounds impressive.
And this appearance has an effect. Now that the International Criminal Court (ICC) has issued an arrest warrant against Israeli Prime Minister Benjamin Netanyahu and former Israeli Defense Minister Yoav Gallant for alleged ‘crimes of war’ in Gaza, many people assume—on the impression created by the Court’s presumed institutional authority—that the accusation must be true.
Is it?
I’ve addressed that question already in another piece:
Here I will address a different but related question:
What is the nature of this International Criminal Court or ICC?
Specifically, I will ask:
Is the International Criminal Court honest, or is it a ‘kangaroo court’?
Wikipedia defines ‘kangaroo court’ as follows:
“Kangaroo court is an informal pejorative term for a court that ignores recognized standards of law or justice [and/or] carries little or no official standing in the territory…”
For example, the court proceedings of the Moscow Trials (1936–1938), during Joseph Stalin’s Great Purge, when prominent Bolsheviks were accused of implausible crimes, tortured into confessing, and then, in scripted proceedings, sentenced to death or imprisonment.
Another example, following the Nuremberg Laws of 1935, were the courts in Nazi Germany which enforced the racial purity laws and persecuted Jews, political dissidents, and others.
These ‘kangaroo courts’ involved pseudo-legal processes with predetermined verdicts whose purpose was not to produce justice but to legitimize a totalitarian regime and give the appearance of institutional legality.
But frankly totalitarian regimes are not the only ones guilty of establishing ‘kangaroo courts.’
In 1947 the House Un-American Activities Committee (HUAC) in the US House of Representatives inaugurated a trend that was later eponymously immortalized by Senator Joseph McCarthy: McCarthyism. It continued in some form until the early 1970s! The tribunals and hearings associated with McCarthyism in the United States are infamous examples of ‘kangaroo courts.’ Many accusations were for alleged ‘crimes’ of thought, speech, and association—all protected behaviors under the US Constitution. The accusations were politically motivated, and most were false anyway. Due process was dispensed with: accused persons were denied the opportunity to confront their accusers or present full defenses, and they were encouraged to accuse others in order to go free. Hearings often relied on anonymous informants (some of them professional FBI informants!) and dubious evidence. Moreover, ‘guilt’—rather than innocence—was presumed, shifting the burden of proof onto the accused.
That is a cautionary tale, and should make us wary. Just because democratic countries participate in the International Criminal Court is no guarantee that it is a proper court. We should therefore examine this matter carefully before we decide that the ICC is a proper court rather than a politically motivated ‘kangaroo court.’
I will settle the question definitively—that’s a promise.
I start with the following observation:
The Hamas and ‘Palestinian Authority’ (PA) bosses positively love the International Criminal Court.
Isn’t that curious? Let us begin here.
Why are Hamas and the PA so fond of the ICC?
Let us first document the fondness. The following was reported back in 2021:
“Hamas on Saturday welcomed an International Criminal Court ruling that paves the way for a war crimes probe against Israel … Palestinian Authority Prime Minister Mohammed Shtayyeh on Friday [also] praised the decision, calling it ‘a victory for justice and humanity, for the values of truth, fairness and freedom, and for the blood of the victims and their families’ ”1
You may be thinking: Well of course! Hamas and the Palestinian Authority are enemies of Israel, so they want Israel investigated by the ICC. What is surprising about that?
But there is a logical problem here.
I don’t mean that the ‘Palestinian Authority’ has invoked “justice and humanity … [and] the values of truth, fairness and freedom.” (But good for you if you caught that.)
No, what I mean is this:
The ruling that Hamas and the PA celebrated is one where the ICC claimed jurisdiction in those territories that the Court calls ‘Palestine.’
In other words, Hamas and the PA were celebrating that the ICC had claimed jurisdiction over them.
But perhaps even more amazing is this:
It was the Palestinian Authority that formally requested ‘Palestine’ be brought under the ICC’s jurisdiction.2
At least this is amazing if you assume that the ICC is an honest court. Why? Well, because Hamas and the PA are terrorist organizations.
No difficulty attaches to this claim concerning Hamas, whose deadliest attack—the unprecedented massacre and hostage-taking of Israeli civilians on 7 October 2023—is recent and famous. Lots of people, however, are now confused concerning the ‘Palestinian Authority,’ so allow me.
The PA is really PLO/Fatah. They have killed Jews, of course. Moms. Dads. Babies. The elderly. People eating a pizza. People riding a bus. Children learning in school. Doctors who saved a PLO terrorist’s life. They’ve killed inside the so-called Green Line, and outside. And elsewhere (for example, Munich). Any Jews. All Jews. Here, there, everywhere. Like a Satanic version of Dr. Seuss.
PLO/Fatah has committed all sorts of crimes against Westerners, too. They’ve hijacked airplanes from the United States, United Kingdom, Switzerland, Germany, France, and Israel. They also hijacked an Italian ship. PLO/Fatah has murdered nationals of the above countries and also nationals of Belgium, Greece, Australia, Japan, and the Netherlands.
PLO/Fatah have killed plenty of Muslims too. They’ve murdered Muslims in Iran, Egypt, Jordan, Syria, Lebanon, Kuwait, Sudan, and Tunisia. They’ve caused civil wars in Lebanon, Jordan, and Syria. And they’ve murdered Muslim Arabs in Israel—a great many—inside and outside of the so-called Green Line. Wherever PLO/Fatah gains power, lots of Muslims become targets—especially the Arab Palestinians.
The media circus has convinced some that PLO/Fatah changed its stripes. But, contrary to its promises, PLO/Fatah did not abandon terrorism in 1993-94 when it signed the Oslo Accords that brought it inside Israel. It just kept on going. To this day, every time a Jew is murdered on orders of the PLO/Fatah terrorists, the perpetrator gets awarded a regular salary in recompense. If the perpetrator died, it goes to the family. All of Arab Palestinian culture has been corrupted in this manner.3
“Like any salary, payments to prisoners follow a sliding scale based on ‘quality.’ In this world, the more heinous the act of terrorism, the greater is the salary. In setting the salary level, the system allows the Israelis themselves to judge just how bloodcurdling the crime is. The more violent the terrorist act, the longer the Israeli prison sentence, and in turn, the higher the monthly compensation [from the ‘Palestinian Authority’].
(…) …the most bloodstained offenders, receiving sentences of thirty years or more, are rewarded with the top wage, 12,000 shekels per month, or almost $3,400 monthly—up to ten times the average pay earned by many working Palestinians.”4
This has been nicknamed the ‘pay-for-slay’ program.
And the Palestinian Authority even pays salaries to Hamas killers.5
So, PLO/Fatah, which we now call the ‘Palestinian Authority,’ are a bunch of terrorists. They’ve always been terrorists. They’re still terrorists.
But Hamas and PLO/Fatah are not merely terrorists—they are jihadi terrorists.
Once again, this claim is straightforward in the case of Hamas, because it is famously and proudly a jihadi organization. But if you didn’t know this, we have a short article on the question:
Concerning PLO/Fatah (the ‘Palestinian Authority’), however, lots of people in the West think it is secular. They are mistaken. This is what is true:
PLO/Fatah created the most important jihadi State: Iran.
It was Yasser Arafat, Mahmoud Abbas, and the rest of PLO/Fatah who armed and trained Ayatollah Khomeini’s guerillas in military camps in Lebanon during the 1970s, making them ready for the 1979 Islamic Revolution. And after installing Khomeini in power, it was again Arafat, Abbas, and their PLO/Fatah henchmen who got busy building Iran’s key jihadi institutions, in particular SAVAMA, the secret police, which is employed to crush the Iranian population, and the IRGC (the Iranian Revolutionary Guard Corps), which is the great exporter of terrorism around the world and the creator of Hezbollah.
Just because you never heard this before doesn’t mean it wasn’t all on the front page of the New York Times in the period 1979-1981. We’ve documented that here:
So Hamas and PA bosses are all jihadi terrorists.
This matters because jihadi terrorists don’t have limited political goals, they have maximalist ideological (‘religious’) goals. They mean to force all of us to convert to Islam—or they’ll kill us. There is nothing to negotiate. If they seem to negotiate, they are only pretending. In consequence, Hamas and PLO/Fatah have become two of the most fearsome international criminal organizations.
One struggles to understand, then, why Hamas and PLO/Fatah have celebrated the International Criminal Court’s ruling that it supposedly has jurisdiction over them, and also why PLO/Fatah requested inclusion in the first place.
For you see, the ICC’s official raison d’être is to deal with crimes that the judicial system of an ICC member cannot or will not prosecute, which is precisely the case of Hamas and the PA, neither of whom will prosecute all those terrorists on their payrolls. So ICC jurisdiction over Hamas and PLO/Fatah—assuming the ICC is an honest court—makes them maximally vulnerable. Why are they celebrating this?
If the turkeys had banded together to organize a pro-Thanksgiving-Day parade we would be similarly surprised.
So this is a paradox.
Now, a paradox, to the scientist, is intolerable—it is evidence of a defect in our models of the Universe. To dissipate this one, I propose the following hypothesis:
Hypothesis: Hamas and PA bosses—all jihadi terrorists—do not consider the ICC an honest court; they perceive it as a jihadi-friendly ‘kangaroo court.’
This would mean that Hamas and PLO/Fatah believe the ICC is a problem not for themselves, but for Israel. They’ve said as much in public. The following was reported in 2015, upon the admission of the alleged ‘State of Palestine’ to the ICC, by Al Jazeera, the news service owned by the jihadi Al Thani family that rules Qatar:
“[concerning] ICC investigation of Israeli officials, the Palestinians are confident they will happen sooner rather than later, considering ‘all the attention to Palestine’ at the ICC” (my emphasis).6
I will now discuss some evidence that supports my hypothesis that Hamas and PLO/Fatah believe that the ICC is jihadi-friendly.
Why might Hamas and PLO/Fatah bosses believe that the ICC is jihadi-friendly?
It seems likely that Hamas and PA bosses got wind of some biographical details concerning Fatou Bensouda, who until recently served as ICC Chief Prosecutor.
“Fatou Bensouda grew in Banjul (Bathurst) Gambia [the tiniest country on the West Coast of Africa] in a polygamous Muslim family of more than a dozen children.”7
Since polygamy, like jihad, is a feature of orthodox Islam, this detail can make a jihadist think that Fatou Bensouda—who in fact admitted PLO/Fatah into the ICC—is a natural ally. But this goes beyond Bensouda, because the man who replaced her as ICC Chief Prosecutor is Karim A.A. Khan, whose personal life Wikipedia summarizes as follows:
“Khan’s father, a consultant dermatologist, was born in Mardan, Pakistan. His mother, a state registered nurse, was born in the United Kingdom. Khan is a member of the Ahmadiyya Muslim Community. He was first married to Yasmin Rehman Mona, the daughter of the fourth caliph of the Ahmadiyya Muslim Community, Mirza Tahir Ahmad. He is currently married to Dato Shyamala Alagendra, a Malaysian lawyer. He has two sons. He has a sister and two brothers, one of whom is the former British Conservative MP Imran Ahmad Khan.”
Ahmadiyya Muslims are often presented in the media as a peaceful movement. But our reality is heavily managed, so it is best always to do your own research. As it turns out, the Ahmadiyya commentaries on the Qur’an justify violent jihad in ‘self-defense’ based on the following Quranic sura:
“And if you desire to punish the oppressors, then punish them to the extent to which you have been wronged” (emphasis original).8
In Ahmadiyya Muslim theory, then, violent jihad is authorized—in ‘self-defense’—when Muslims feel “wronged” by “oppressors.”
It is relevant, therefore, that the Ahmadiyya commentaries on the Qur’an consider the creation of “the so-called State of Israel,” as they name it, an issue for all Muslims, for the establishment of Israel is interpreted to mean that “Muslims are being punished” by non-Muslims.9
And how should Ahmadiyya Muslims normatively respond to this ‘punishment’? One can infer that from how the Ahmadiyya commentaries on the Qur’an speak of a Great Final Battle between Muslims and Judeo-Christians.
“The Holy Prophet [Muhammad] is told that the sphere and scope of his preaching … would embrace in its orbit Christians and Jews … [which would] excite a new opposition and Muslims would suffer persecution from all quarters.”10
Yet the Muslims, according to the commentaries, will be victorious, as the enemies of Islam “would meet with a terrible fate.” A “veritable war”—as opposed to a metaphorical war—will take place, that “will be waged against disbelief [meaning non-Muslim ‘infidels’] and its leaders will be destroyed.”11
I can see how all of this might reassure the jihadi bosses of the Arab Palestinians that the ICC will be friendly to jihadists. And ICC Chief Prosecutor Karim A.A. Khan does seem quite friendly, in the photo at top, with international criminal and PLO/Fatah boss Mahmoud Abbas.
Now, so far, I have been careful to speak of what appear to be the perceptions of Hamas and PLO/Fatah bosses concerning the ICC and its prosecutors. But that cannot—by itself—convict the ICC or its prosecutors of having jihadi sympathies. After all, Hamas and PLO/Fatah bosses might be wrong in what they apparently perceive.
We must be fair, therefore, to the ICC. And that means judging ICC prosecutors according to their own actions.
By their reasoning ye shall know them…
I now move, therefore, to consider the manner in which the ICC decided that it was competent to consider allegations of war crimes in Judea & Samaria (‘West Bank’) and Gaza.
Did the ICC violate international law to include the PA as a ‘State Party’?
In order to include the Palestinian Authority as a ‘State Party’ to the ICC’s founding and governing treaty—known as the Rome Statute—the ICC defined a ‘State of Palestine’ comprising what it calls the ‘West Bank’ (it’s real name is Judea & Samaria) and Gaza.
That was an interesting legal decision, for the following reasons:
The Palestinian Authority does not even control the borders of the larger territory in which it autonomously governs a few municipalities.
Gaza is not even locally governed by the Palestinian Authority.
Israel does not recognize the Palestinian Authority as a State.
The last point, as one international-law expert explains, is decisive:
“Recognition of a new state essentially means legally recognising the transfer of sovereignty over a territory from one authority to another. An international body, including the UN, cannot just take away territory without the permission of the original ‘host’ state. To do so would be a violation of one of the defining rules of the system of states.” (emphasis mine)12
Consistent with that view, Judge Péter Kovács (PEH-ter koh-VAHCH) of the ICC—who dissented from the ICC ruling that supposedly established that Court’s jurisdiction over ‘Palestine’—made the following point:
“it is … well-known that Israel has stood up against the admission of Palestine as a Member State of some organizations, emphasising that ‘Palestine is not a State.’ ”13
Hence, so long as the government of Israel has not formally recognized a new State in Judea & Samaria and Gaza, that State does not—legally—exist. Why? Because Israel is the ‘host’ State and the transfer of sovereignty is in its gift, as none but Israel can legitimately claim sovereignty over Judea & Samaria, and Gaza.
I understand that my last claim will raise some eyebrows because of the way our meaning-making institutions have been speaking. So I will now carefully defend this point—that only Israel can legitimately claim sovereignty over Judea & Samaria, and Gaza—for it is a question of international law, and that is precisely what we are considering in this essay.
The exclusive and legitimate claim of Israeli Sovereignty over the Disputed Territories
After World War II, in 1946, the genocidal monster Hajj Amin al-Husseini, responsible for co-leading the German Nazi genocide of the European Jews, and his protégé Azzam Pasha, Secretary General of the Arab League, recreated the Arab Higher Committee as the representative of the Palestinian Arabs.14
Acting in this capacity, when the UN voted to partition what remained of the British Mandate for Palestine (1947) and create there a laughably small Jewish State and a second Palestinian State (the first was the Kingdom of Jordan), Husseini rejected the offer, and was echoed by the rest of the Arab bosses. They were not interested in a Palestinian State; what they wanted was to impede the creation of a Jewish State—any Jewish State, no matter how small.
Azzam Pasha—without any shame for the fact that the Shoah (the Holocaust) had just ended—had previously announced that, if the Zionist Jews accepted the UN offer of a Jewish State, the Muslim States would launch all together:
“a war of extermination and a massive massacre that will be remembered like the Tartar [Mongol] massacres and the Crusades.”15
(Genocidal wars, note, are the kind of crime that the ICC was created to prosecute.)
Husseini undoubtedly felt that an anti-Jewish genocide in the Middle East, the dream he shared with Hitler, was now within reach. But the Arab States lost the 1948 War, and Israel was established. After this, the Arab League organized the expulsion of all Jews (without their property!) living in the Arab States—a massive population—.16 Tiny Israel did what it could to absorb half of them. The rest migrated elsewhere.
(The forced dispossession and expulsion of a minority, note, are the kind of crime that the ICC was created to prosecute.)
At the closing of the War of 1948, Egypt had planted itself on top of Gaza, and Jordan on top of Judea & Samaria. From here on, the talking heads began calling Judea & Samaria, in English, the ‘West Bank’ (of the River Jordan). This is a name that had never been used before, and it was introduced into public discourse so that the real names, Judea & Samaria, which have been the names for thousands of years, would not be used, because these real names clearly speak of the Disputed Territories as the land of the Jews and the Samaritans (another Torah-believing people).
Who did these territories belong to? Neither Jordan nor Egypt could legally claim sovereignty, for genocidal wars cannot confer a legal claim; if they could, all of international law would instantly collapse.
And Husseini and the Arab Higher Committee, representing the Palestinian Arabs, had already rejected the offer of a Palestinian State in those territories, preferring to launch a genocidal war to complete Hitler’s unfinished crime.
Moreover, the Palestine Liberation Organization (PLO), recognized from 1964 onwards as the representative of the Arab Palestinians, declared in its 1964 founding Charter (Article 24)—guess what?—that Judea & Samaria (‘West Bank’) and Gaza are not part of ‘Palestine.’17
It follows, therefore, that the legal status of these territories remained in limbo.
Material control of them, however, was in the hands of the illegal occupiers Jordan and Egypt, which countries used these territories as military launching pads, in 1967, for a new war of genocidal aggression against Israel. Gamal Abdel Nasser, President of Egypt and de facto successor to Azzam Pasha as leader of the Arab League, announced his goals as follows:
“We will not enter Palestine [that is, Israel] with its soil covered with sand. We will enter with its soil saturated with blood.”18
And he said:
“…the battle against Israel will be a general one and not confined to one spot on the Syrian or Egyptian borders. The battle will be a general one and our basic objective will be to destroy Israel.”19
But the Arab States lost again. At the end of the conflict, Israel controlled—among other territories taken from the genocidal aggressors—Judea & Samaria and Gaza. Since Israel took these territories while defending herself from genocidal attack, only Israel can legitimately claim sovereignty.
The preceding point is entirely sufficient, but if more were needed, I enumerate three further considerations:
These territories (Judea & Samaria and Gaza) had been included in the original agreement for the creation of a Jewish homeland, which is the Mandate for Palestine of the League of Nations (San Remo Conference of 1920).
When, in 1922, Winston Churchill (then Colonial Secretary) separated the territory he called ‘Transjordan’ (now the Kingdom of Jordan) from the Palestine Mandate, he restricted Jewish settlement to “[the territory of] Palestine lying west of the [River] Jordan.” This was completely arbitrary and violated international law, for it went against what the League of Nations had established. Even so, however, Judea & Samaria and Gaza were once again included in the territory allotted for a Jewish homeland.20
As mentioned above, the PLO—the internationally recognized representative of the Palestinian Arabs—had explicitly stated, in its original 1964 Charter, that Judea & Samaria (‘West Bank’) and Gaza are not part of ‘Palestine.’21
From all this it follows that no ‘State of Palestine’ can legally exist on the disputed territories of Judea & Samaria and Gaza unless and until Israel, the only legitimate ‘host’ State for those territories, has given its formal recognition.
Remarkably, the ICC disregarded this simple legal reality when, in 2015, it defined the so-called ‘State of Palestine’ as comprising the territories of the ‘West Bank’ (Judea & Samaria) and Gaza and accepted the ‘Palestinian Authority’ as a State Party to the ICC. To say that the ICC stepped out on a limb here would not quite describe it; like Wile E. Coyote, the Court stepped onto cold, thin air.
Why did the International Criminal Court contravene international law? How to make sense of this scandalous behavior?
One possible explanation is that the International Criminal Court is indeed a jihadi institution, as the Hamas and PA bosses appear to believe. But let us not yet rush to conclusions. Let us first consider the ICC’s strategy on the question of its alleged jurisdiction over Judea & Samaria and Gaza.
Chief Prosecutor Fatou Bensouda’s request for a ruling on jurisdiction
In legal terms, ‘jurisdiction’ can be addressed in two different ways:
“Jurisdiction … is the practical authority granted to a legal body to administer justice, as defined by the kind of case, and the location of the issue” (my emphasis).22
There is no issue with the “kind of case”—allegations of war crimes certainly fall under the ICC’s purview. What about territorial jurisdiction (“location of the issue”)? The ICC’s founding and governing document, the Rome Statute, states:
“The Court [the ICC] may exercise its functions and powers, as provided in this Statute, on the territory of any State Party” [Article 4(2)]23
In other words, the Court is a club: a voluntary membership organization. Only those countries which have signed the Rome Statute—the ‘State Parties’—have granted the Court jurisdiction in their territories.
The question of territorial jurisdiction therefore is not one that lends itself to philosophical legal debates or tactical examinations of precedent; you just consult the roster of signing State Parties and you are done! If the inclusion of the alleged ‘State of Palestine’ was legally proper, then the Court has territorial jurisdiction over those municipalities that the PA governs; but if such inclusion was not legally proper, then the Court does not have territorial jurisdiction.
Period.
And yet Fatou Bensouda requested a formal analysis and a ruling on the question of the ICC’s jurisdiction over the disputed territories of Judea & Samaria and Gaza. Why?
Here’s the clue: in Bensouda’s request for a ruling on jurisdiction, she stated that she was
“ ‘mindful … [of the] fact that the question of Palestine’s statehood under international law does not appear to have been definitively resolved.’ ”24
It appears that Bensouda was “mindful” that she had acted illegally when she admitted the alleged ‘State of Palestine’ as a member of the ICC. She was apparently hoping that a positive ruling on jurisdiction might obscure that.
Of course, since Bensouda indeed acted illegally in 2015 when inducting the alleged ‘State of Palestine’ into the ICC, the ICC cannot have legal jurisdiction in Judea & Samaria and Gaza, and therefore any positive ruling on jurisdiction would also be illegal.
But why was Bensouda acting illegally?
The clue is in her statement, also in the request for a ruling on jurisdiction, that Judea & Samaria and Gaza are supposedly “occupied by Israel,” which amounts to asserting—in flagrant contradiction to her “mindful” observation above—that the ‘State of Palestine’ already exists!
Why that implication? Because Bensouda is not saying that the disputed territories belong to any other State, so they can be “occupied by Israel” if and only if Israel seized them—and seized them illegally, mind you—when Judea & Samaria and Gaza were already the alleged ‘State of Palestine.’ But we’ve already seen that this is impossible. The Arab Higher Committee—representing the Arab Palestinians—had rejected the offer of these territories for a State in 1947; the PLO—again representing the Arab Palestinians—had defined that these territories are not ‘Palestine.’
Her entire process is absurd.
What is clear is that the members of the ICC team deputized to rule on the question of jurisdiction, recipients of Fatou Bensouda’s formal request, when they saw the phrase “occupied by Israel” must have perceived in it a clear message, like a dog whistle, that Bensouda wanted jurisdiction in Judea & Samaria and Gaza so that she could then pretend—in a further absurdity—that such jurisdiction over the Disputed Territories would give her legal grounds to prosecute Israelis for alleged crimes of war there.
All of this is diagnostic of a corrupt, kangaroo court.
Perhaps, then, as both Hamas and the Palestinian Authority apparently think, the ICC is indeed a jihadi-friendly institution.
But, for the cherry on top, I will consider below the minority report, written by Judge Péter Kovács, “the senior judge at the International Criminal Court,” who dissented from the majority opinion. Kovács in fact presided the three-judge Chamber that ruled on jurisdiction, and he wrote a meticulous 163-page refutation of the majority opinion.
You’ll be astonished.
The Minority Report
Bear in mind, below, that numbers in parenthesis are references to the relevant portions of Kovács’ document (referenced in the footnote), and that the Rome Statute is the ICC’s own set of rules—it’s ‘constitution,’ so to speak.25
Legal language is usually dry; Kovács’ prose is the exception. He chastises his two colleagues for their “acrobatics with provisions of the [Rome] Statute [that] cannot mask legal reality” (13) and for “the Majority’s deliberate refusal to take into consideration relevant rules of international law” (279). Dramatic charges of this very sort—sprinkled throughout the document with multifarious fecundity—are garnished by Kovács with rather strong irony and sarcasm.
For example:
“While recognizing the Prosecutor’s [Bensouda’s] professionalism and the value of her analysis, my impression is that, in basing her arguments on presumptions, she aims to avoid answering the real question: can the West Bank, East Jerusalem and Gaza be considered hic et nunc (in 2020-2021) ‘the territory of the State’ according to well-established notions of public international law?” (26)
If Bensouda “aims to avoid answering the real question,” can she be acting in good faith? I don’t think so. In which case, neither can I believe that Judge Peter Kovács really recognizes her “professionalism and the value of her analysis.” I think that’s sarcasm.
And why is this question—whether the disputed territories can be considered the ‘State of Palestine’—“the real question”? Well, because if Judea & Samaria (“the West Bank”), East Jerusalem, and Gaza cannot be considered the territory of the alleged ‘State of Palestine,’ then that State does not exist, and the ICC acted illegally when it welcomed that alleged ‘State of Palestine’ as a member, which in turn means that the ICC has no jurisdiction over these territories.
Amazingly, Bensouda asserts that the question of the ICC’s jurisdiction can be determined without establishing juridically whether the ‘State of Palestine’ exists! Writes Kovács:
“It is worth noting that in the Request, the Prosecutor [Bensouda] characterizes an assessment of Palestine’s statehood by this Chamber as unnecessary … and seems to indicate a preference that the Chamber not undertake such assessment.” (32)
Disregarding entirely the wishes of the Chief Prosecutor, this dissenting judge asks—and answers—the question that the Prosecutor has tried to avoid: Is the Palestinian Authority governing a State?
Kovács answers this question with a torrent of forensic detail that overflows with citations to UN precedent, UN regulations, and explicit statements of various UN secretaries general, plus a meticulous consideration of all applicable international law. He concludes as follows: when the Palestinian Authority acceded to the ICC, “Palestine’s statehood was not at all (and is still not) a settled issue within the United Nations” (14-15). Chief Prosecutor Bensouda, as we saw above, admitted as much in her Request.
I am forced to ask this question:
How then did the other two judges, the Majority, support the opposite view in their Response?
Kovács explains that
“The Request [from the Chief Prosecutor] and the [Majority] Response follow a circulus vitiosus [vicious circle] reasoning” that relies on “a series of complex interlocking presumptions” (17-18).
Despite having zero basis in law, Kovács charges, these presumptions participate in the majority’s argument as facts, or, more precisely, “as irrefutable presumptions” (23). In other words, Kovács charges that, if Palestinian statehood cannot legally be defended, his colleagues will just presume it.
The ICC, Kovács points out, went considerably beyond what even the various functionaries of the Palestinian Authority—and significantly Mohammed Shtayyeh and Mahmoud Abbas (respectively, prime minister and president of the PA)—feel comfortable declaring in public, for they were speaking of ‘the State of Palestine’ as something still to be realized (254).
But what exactly did the Majority argue?
Underneath all the handwaving, the Majority’s key maneuver appears to be nothing more than this: having once accepted the Palestinian Authority as a State Party to the ICC, which was done in 2015, the Court is now obligated to continue upholding the fiction that the PA is, in fact, a State. ‘Ergo,’ the Palestinian Authority is ‘the State of Palestine’ (53).
Kovács exclaims:
“instead of using legal arguments, the Majority uses its own perception in order to prove its point. In other words, the Majority’s reasoning is flawed due to its circular logic whereby proper inferences are not made. Point A proves Point A.” (62)
In addition to circular reasoning, the Majority employs verbal tricks.
When invoking the key article of the ICC’s Rome Statute bearing on jurisdiction, the Majority chose to use the word ‘State’ in novel and entirely flexible ways. Why? Because otherwise they’d be forced to consider the question of whether the Palestinian Authority is or not a State according to international law—which they didn’t want to do. And, moreover, the traditional interpretation of ‘State,’ as the Majority itself plainly wrote, “ ‘would also have the effect of rendering most of the provisions of the [Rome] Statute … inoperative for Palestine’ ” (68; emphasis belongs to Kovács).
In other words, if elementary logic, the ICC’s own Rome Statute, or the simple meaning of the term ‘State’ in international law will render the ICC “inoperative for Palestine,” then the Majority will throw them all out. To which Kovács replied (essentially): What?!
“Should the well-established jurisprudence … of the [Rome] Statute [on the question of jurisdiction] be considered erroneous for the reason that it does not fit a single (but certainly very complicated) case? While I profoundly respect the Majority’s standpoint, I have to emphasise that this reasoning is in contravention of both the law of the Vienna Convention and the Court’s [the ICC’S own] jurisprudence.” (70)
The sarcasm here has become violent. This judge cannot possibly feel respect—much less “profound respect”—for a maneuver that, in the key article on jurisdiction, trashes both the Vienna Convention and the International Criminal Court’s own jurisprudence. And all of that just to support a special argument in favor of making the ICC “operative for Palestine.”
I imagine Judge Kovács grinding his teeth when he writes:
“Refusing to work with rules and established notions of international law is unusual given that the ICC is itself an international tribunal and the issue sub judice raises multiple questions of international law.” (118)
He says “unusual”—masterful understatement.
But Kovács loses all patience, it seems to me, with the argument of the Majority that, since the Palestinian Authority has been called ‘non-member observer State’ at the UN, this must coerce us into concluding that “the General Assembly was convinced of Palestine’s ‘statehood.’ ”(24)
How did the Majority defend this? It didn’t, Kovács observed. And it is obvious why: “in the Prosecutor’s [Bensouda’s] view, no such evaluation is allowed or deemed necessary.”
Against this, Kovács stubbornly undertakes this evaluation anyway, and shows with erudition that, in the past, calling an entity ‘non-member observer State’ has never turned such an entity into a State (199-219).
What Kovács doesn’t say—he is perhaps too polite (but I am not)—is the following:
It was UN Secretary General Kurt Waldheim—formerly a Nazi officer in World War II directly active in Yugoslavia, where Yasser Arafat’s mentor Hajj Amin al Husseini was also directly active—who gave Husseini’s protégé, Yasser Arafat, a warm welcome at the UN, baptizing his group, PLO/Fatah, a ‘non-member observer State.’
And—let us ask—why has the ICC done all of this, anyway? It is a lot of effort, no? What are all these pseudo-legal “acrobatics” of the Majority for? In the technical sense, they are meant to determine which territories correspond to the ‘State of Palestine’ (so that the Court may know where, exactly, it has jurisdiction). And that is the most incredible thing, here: that the Court should believe it is in any way competent to decide this. Because, even supposing that Israel might—at some time in the future—recognize the creation of the (presently nonexistent) State in question, the negotiations to determine the borders of any future ‘Palestine’ are still pending.
But I’ll let Kovács say that in his own words:
“The real and persisting problem in answering the question concerning the geographical scope of the Court’s jurisdiction and the Prosecutor’s investigation is linked to the fact that, currently, there are no precise settled borders either at the bilateral Israeli-Palestinian level or at any multilateral level.” (245)
What the ICC has done here is pure legal nonsense. This is a ‘kangaroo court’—QED.
The ICC does not have jurisdiction.
To conclude
I will summarize my findings.
the Court’s recent behaviors were produced at the behest of, and were celebrated by, terrorist antisemites linked at the source with the Nazi Final Solution, and responsible for the creation of jihadist Iran;
the Court’s decision seeks
to legitimize said terrorist antisemites with the dignity of statehood; and, by way of that argument,
to make the State of Israel a target of investigations concerning alleged war crimes.
To do all that, the Court has defied
all extant international law;
the spirit and letter of the Court’s own founding and governing document, the Rome Statute; plus
the Court’s own jurisprudence on the Rome Statute; and
the most elementary logic as well as basic morality.
This is all consistent with the perception of both Hamas and the Palestinian Authority that the ICC is a jihadi-friendly institution.
We are witnessing an Orwellian inversion.
What do I mean by that?
After World War II, in the context of the then recently concluded Nazi genocide of between 5 and 6 million Jews, the Shoa, it was argued publicly that a specialized court was needed, competent to investigate and prosecute crimes of war and crimes against humanity.
On this argument a highfalutin ‘Court’ was created. And guess what? That court is the International Criminal Court, or ICC.
But this ICC, established following discussions sparked by an anti-Jewish genocide, is presided by what to all appearances are jihadi Muslims, who violate every principle of morals, legal precedent, and simple logic in order to assist the followers of Hajj Amin al Husseini, the Nazi exterminator of the European Jews, who mean to carry out another anti-Jewish genocide.
War is Peace. Freedom is Slavery. Justice is Injustice.
You are living in the world that Orwell foresaw. (Will you do something about it?)
“Hamas on Saturday welcomed an International Criminal Court ruling that paves the way for a war crimes probe against Israel … Palestinian Authority Prime Minister Mohammed Shtayyeh on Friday praised the decision, calling it ‘a victory for justice and humanity, for the values of truth, fairness and freedom, and for the blood of the victims and their families’ ”
SOURCE: Hamas lauds ICC jurisdiction ruling: ‘Use all means to stop Zionist crimes’; Times of Israel; 6 February 2021; by TOI STAFF.
https://www.timesofisrael.com/hamas-lauds-icc-jurisdiction-ruling-use-all-means-to-stop-zionist-crimes/
‘The Ruling by the International Criminal Court: Background, Analysis, and Implications’; Israel Democracy Institute; 16 February 2021; by Amichai Cohen.
https://en.idi.org.il/articles/33752
‘Palestinian Authority Pays for the Murder of Jews’; Algemeiner; 5 July 2024; by Ephraim D. Tepler and Itamar Marcus.
https://www.algemeiner.com/2024/07/05/palestinian-authority-pays-for-the-murder-of-jews/
‘Blood money: The PA's terrorist reward system’; Israel Hayom; 21 August 2024.
https://www.israelhayom.com/2024/08/21/what-is-the-pa-pay-to-slay-program/
For a more complete and thoroughly contextualized documentation we recommend Edwin Black’s book Financing the Flames. Black has documented with exquisite care that nothing in the ‘Palestinian Authority’ budget has precedence over the payments to the terrorists (or their families, if the terrorist has died ‘martyred’). In fact, “the salaries for the terrorists rise to millions of dollars a month.”
The money for this pours in from all the world, including from the governments of Europe and the United States. It’s quite the international mission.
One thing Black mentions is that when those Arab Palestinians who’ve earned Jew-killer salaries are not paid in full, and on time, they can become a serious problem (they are cold-blooded killers). And that brings an uninvited thought into my mind: if the PLO/Fatah bosses can keep such murderous thugs even moderately disciplined, these bosses must be the most formidable, most terrible orcs.
Source: Black, Edwin. (2013). Financing the Flames: How Tax-Exempt and Public Money Fuel a Culture of Confrontation and Terror in Israel. Dialog Press. Kindle Edition. (pp.188-190, 204).
Black, Edwin. (2103) Financing the Flames: How Tax-Exempt and Public Money Fuel a Culture of Confrontation and Terror in Israel. Dialog Press. Kindle Edition. (p.189).
‘PA paying salaries to Hamas men in Israel’s prisons’; Jerusalem Post; 9 February 2011; by Khaled Abu Toameh.
https://www.jpost.com/Middle-East/PA-paying-salaries-to-Hamas-men-in-Israels-prisons
Palestine formally joins International Criminal Court; Aljazeera; 1 April 2015
https://www.aljazeera.com/news/2015/4/1/palestine-formally-joins-international-criminal-court
Who is Fatou Bensouda?; World Atlas
https://www.worldatlas.com/articles/who-is-fatou-bensouda.html
From the Ahmadiyya text, The English Commentary of the Holy Qur’an, p.1399
https://archive.org/details/TafseerEngCommQuranLong/page/n1397/mode/2up
From the Ahmadiyya text, The English Commentary of the Holy Qur’an, p.1399
https://archive.org/details/TafseerEngCommQuranLong/page/n1397/mode/2up
From the Ahmadiyya text, The English Commentary of the Holy Qur’an, p.1399
https://archive.org/details/TafseerEngCommQuranLong/page/n1317/mode/2up
From the Ahmadiyya text, The English Commentary of the Holy Qur’an, p.1399
https://archive.org/details/TafseerEngCommQuranLong/page/n1317/mode/2up
How does a country become a country? An expert explains; The Conversation; August 3, 2017; by Rebecca Richards
https://theconversation.com/how-does-a-country-become-a-country-an-expert-explains-81962
Judge Péter Kovács’ Partly Dissenting Opinion; N°ICC-01/18-143Anx1; February 2021 (311)
https://www.icc-cpi.int/RelatedRecords/CR2021_01167.PDF
The Arab League, then and forever: What is the Arab League hoping to achieve in Annapolis?; Historical and Investigative Research; 23 November 2007; from Understanding Annapolis, an HIR Series; by Francisco Gil-White
https://www.hirhome.com/israel/annapolis_2.htm#AHC
Barnnett, D. & Karsh E. 2011. Azzam’s Genocidal Threat. Middle East Quarterly. Fall. (pp.85-88).
https://www.meforum.org/3082/azzam-genocide-threat
Gil-White 2007. The Arab League, then and forever (op/ cit.)
https://www.hirhome.com/israel/annapolis_2.htm#war1948
Palestine Liberation Organization 1964 Charter (Article 24)
To read the relevant article:
Visit the link below, which is to the archived UN page of the PLO.
Select ‘Palestine Liberation Organization’ in the menu at left.
Scroll down to ‘Palestine National Charter of 1964’
Click on the link.
Scroll down to Article 24.
https://web.archive.org/web/20060911085747/http://www.palestine-un.org/mission/frindex.html
Here’s a bit more context:
“…Syria used the Golan Heights, which tower 3,000 feet above the Galilee, to shell Israeli farms and villages. Syria’s attacks grew more frequent in 1965 and 1966, while Nasser’s rhetoric became increasingly bellicose: ‘We shall not enter Palestine with its soil covered in sand,’ he said on March 8, 1965. ‘We shall enter it with its soil saturated in blood.’ ”
SOURCE: Howard Sachar. (1979). A History of Israel: From the Rise of Zionism to Our Time. NY: Alfred A. Knopf. (p. 616).
‘Statement by President Nasser to Arab Trade Unionists’; (May 26, 1967)
https://www.jewishvirtuallibrary.org/statement-by-president-nasser-to-arab-trade-unionists-may-1967
British White Papers: Churchill White Paper (June 3 1922); Jewish Virtual Library
https://www.jewishvirtuallibrary.org/churchill-white-paper-1922
Palestine Liberation Organization 1964 Charter (Article 24)
To read the relevant article:
Visit the link below, which is to the archived UN page of the PLO.
Select ‘Palestine Liberation Organization’ in the menu at left.
Scroll down to ‘Palestine National Charter of 1964’
Click on the link.
Scroll down to Article 24.
https://web.archive.org/web/20060911085747/http://www.palestine-un.org/mission/frindex.html
Jurisdiction; Wikipedia.
https://en.wikipedia.org/wiki/Jurisdiction
The ICC’s Rome Statute
https://iccforum.com/rome-statute
SITUATION IN THE STATE OF PALESTINE; No:ICC-01/18-143; 5 February 2021; Before the Judges Péter Kovács, Marc Perrin de Brichambaut, Reine Adélaïde Sophie Alapini-Gansou (22)
https://www.icc-cpi.int/CourtRecords/CR2021_01165.PDF
Judge Péter Kovács’ Partly Dissenting Opinion; N°ICC-01/18-143Anx1; February 2021
https://www.icc-cpi.int/RelatedRecords/CR2021_01167.PDF
Brilliant and revealing analysis! If only our State Department had this level of discernment - but it would need integrity to achieve that!