People look at a poster of Israel Prime Minister and governing Likud party leader Benjamin Netanyahu at a voting centre in the northern Israeli city of Hadera. File picture: Ariel Schalit/AP
The reputation of the International Criminal Court (ICC) is under fire. As Ms Fourie rightfully points out (in the her opinion piece Investigating Israel is important for the International Criminal Court's credibility, which was published by IOL on December 30, 2019) , the ICC has indicted, brought to trial and convicted, only Africans. This unfortunate fact led to the rapid decline in the ICC's reputation and to heavy criticism. In order to restore the ICC's credibility, the ICC needed to target someone whose investigation would enhance its credibility.

Some obvious choices for such an investigation come to mind. Syria, where 83 500 civilian deaths have been attributed to the Syrian regime, including the use of poisonous gas against its citizens, and the Turkish continuous occupation of Northern Cyprus or their acts against the Kurds.

But whom does the ICC choose to investigate, a choice that Ms Fourie applauds? Someone that everyone just loves to hate – a Jew. (Although Syria and Turkey are not Member States of the ICC, neither is Israel).
It should be remembered that the idea behind an international court was advanced and enthusiastically supported by both Israel and leading Jewish legal scholars worldwide. Ensuring the pursuit of justice when the most heinous of crimes against humanity are committed lies within the core of Jewish values and history. The idea seemed to them, as it seems to many others, like a potential cure to a broken world and was incredibly appealing.

But what happens when fantasy collides with reality?

Those Jewish supporters were dismayed when they realized that the framework of that great dream, as it was becoming reality, was far from what they had envisioned. They perceived that the ICC had the potential to be hijacked by political interests rather than be guided by an objective, colorblind sense of justice. And so, shockingly to many, at least at the time, Israel decided against joining the Rome Statute, the treaty that established the International Criminal Court (ICC).

It seems that Israel's hesitations were confirmed, for the ICC is advancing a criminal investigation against Israel.

In a normal state of affairs, the ICC would have a serious problem trying to assert jurisdiction over Israel given the existing legal circumstances. Circumventing these hurdles opens the door to a highly dangerous precedent.

Let us take a moment to try and understand why prosecuting Israel in this context can become such a dangerous precedent.

Palestine is not a State. People like Ms Fourie may (wrongfully) argue that Palestine should be considered a state de-jure, meaning they possess the legal right to a state, but that doesn't change the facts. De-facto, there is no - and never was - a Palestinian state.

The Palestinians are entitled to the right of self-determination. But the Palestinians are also a group who chose the path of violence and terrorism. In order to fulfill their goals, they blow up buses, fire rockets at civilian populations, use their own people as human shields, assassinate leaders, hijack airplanes and dig tunnels into civilian communities with the intent to launch a surprise attack, kill and kidnap whomever is Jewish and crosses their paths.

This policy is continuously encouraged by all Palestinian factions, including the Palestinian Authority (PA).

Let's go back to the concept of “self-determination”. This right is well established in modern international law, as well as its defined purpose to provide people with the legal right to their chosen identity and to freely practice their beliefs. However, the scope is deliberately ambiguous given that there are often many competing rights and interests and the reality on the ground is usually complex.

While the right to self-determination is a point of consideration, it is not a determining factor in establishing a state and certainly not in a specific and pre-defined territory. In addition, self-determination can be fulfilled in many ways, either through political and social rights within an existing state (as is the case for most minorities) or through different forms of self-government that don't amount to full sovereignty (as in the case of the Palestinians).

A hypothetical assertion that self-determination automatically equals national independence would undoubtedly lead to chaos and endless bloodshed all over the world. Just envision a scenario where every minority group on earth will see this precedent as a green light to pick up arms, start a war or an unwavering terror campaign aiming to by-pass every international legal norm, and receive statehood recognition from the ICC.

This scenario is the reason that, despite the fact that supporting Israel openly might harm the popularity of the supporter (regardless of the actual facts), we now see countries slowly stand up and voice their opposition to the ICC's assertion of jurisdiction in the Israel-Palestinian case.
Australia, the US, Hungary and even Germany have already voiced their concerns. And it's probably just the beginning.

Unfortunately, there are countless territorial, ethnic and religious disputes all over the world. In all cases but one, the world tends to voice its condemnation of terror and violence unequivocally. Terror cannot be condoned. If it is, it will come back to haunt us. The same goes for statehood. If we condone such an extreme deviation from international rules, even if it's just Israel, we are likely opening a Pandora's box.

The pursuit of Israel by the ICC is not only a distortion of justice, it is also a very dangerous precedent. A criminal court cannot be a tool to by-pass negotiations and a way to try and force what might be a desirable political outcome for some.

And as far as the ICC's credibility goes, serious thought should be given to its long-term credibility beyond a seemingly instant, short term fix to its popularity problem.

* Advocate Yifa Segal is Executive Director of the International Legal Forum (ILF).

** The views expressed here are not necessarily those of IOL.