Open letter to Marc Perrin de Brichambaut, Judge of the International Criminal Court

Mr Judge, if I take the initiative of this letter, on the eve of an important decision to be taken soon within the framework of your jurisdiction and for which you have been committed, concerning the recognition or not by the Court of its jurisdiction in a case presented by the Palestinian Authority born of the Oslo Accords, it is because of a sense of urgency and fear that I would experience in the face of the disastrous consequences that would result had to be retained.

I was born a year before you, I attended high school at the Lycée Hoche in Versailles and studied law in Paris. There is therefore a good chance that our paths crossed on the benches of the Parisian law school at the end of the 60s of the previous century. Your brilliant career reflects an obvious familiarity with the concepts of public law and public international law.

I am aware, however, that even then, students of very different origins, ethnicities and philosophical options could rub shoulders within the walls of the University of Paris. However, I remain convinced that our masters at that time were able to infuse us with a common fund of knowledge and values whose rigour and intellectual honesty are not the least.

For my part, after five years of practicing law in the Paris region, I chose in 1976 to join the sovereign Jewish state, where, after three years in the Ministry of Justice, I have been practising as a lawyer in the Capital of Israel since King David, Jerusalem. Like all French-trained lawyers who have since settled in Israel, I have never and never renounced the importance and weight of the principles acquired in France.

It is precisely in the name of these common principles that I would like to invite you, in the context of your reflection before your decision, to consider the following:

-There has never been a « State of Palestine » in history. On the other hand, the small country of 28,000 km2, between Jordan and the Mediterranean, which the Hebrews and their heirs, the Jews, have for about 4000 years called the « Land of Israel » has been home to for hundreds of years a Jewish population, a defined territory, and sovereign organs of government, characterizing a state, before and after Greek rule. The country then suffered the domination of the Roman Empire, that of Byzantium and then that of the Islamic empire, but never constituted an autonomous territorial unit. For 400 years from 1517 to 1917 Turkish rule dyed there until the British mandate from 1917 to 1948.

-All historical sources report the permanence of the Jewish settlement of the country, which became weak in the 18th century until the middle of the19th century, and the desolation that prevailed there at the beginning of the19th century.

-The only consensual document that underpins the division of the territories that constituted the Ottoman Empire into Public International Law is the Treaty of Sanremo established under the auspices of the League of Nations. This document, which incorporated the « Balfour Declaration » countersigned by the great powers of the time, recognized the right of the Jewish people to re-establish themselves in their Historical Homeland. It fixed its territorial scope to the whole of Palestine (Western and Eastern), including the territory that would become that of Jordan. He entrusted the United Kingdom with a « mandate » to protect and facilitate the eventual restoration of the sovereignty of the Jewish people in his country.

-However, very quickly, Britain violated its obligations under the mandate and removed Eastern Palestine, three-fifths of the territory, from Jewish access and in 1946 constituted the Kingdom of Jordan.

-The influx of Jews to their ancient homeland led shortly after the end of the First World War to economic development of the country which triggered a massive illegal immigration from neighbouring Arab countries. This wave of immigration since 1920 makes up the bulk of the Palestinian Arab population.

-The violations of the mandate by the British worsened singularly from 1929 until blocking the entry of Jews into their homeland at the very moment when Nazi Germany was undertaking the systematic and selective massacre of the Jews of Europe, the Holocaust.

-The plan of UN Resolution 181 in 1947 no longer shared only Western Palestine and had no legal value other than that of a « recommendation » was accepted by the Israeli side.

-On the other hand, all the Arab parties totally refused it and as soon as the resurgence of Jewish sovereignty was proclaimed in May 1948, the armies of Five Arab States rushed to what was still the day before the Jewish community of Palestine, with the certainty, very likely at that time, to complete Hitler’s work. This attitude made the resolution ipso facto obsolete.

-In a superhuman effort, the 600,000 new Israelis managed to contain the onslaught but could not prevent Egypt’s occupation of the Gaza Strip and that of Judea and Samaria, including the Old City of Jerusalem, by newly formed Jordan.

-These occupying powers seized the properties, historical sites, places of worship belonging to Jews in these areas and destroyed them outright. Not to mention the abuses and murders against people in those territories. For 19 years the occupation by these two states of large areas of Western Palestine, and violations of the law, did not arouse any protest in the world. Only two states, however, recognized the legality of the Jordanian occupation, the United Kingdom and Pakistan.

-When, in May-June 1967, a coalition of Arab armies made an avowed proposal to carry out the genocide of Israel and, while the glaring imbalance of forces in favour of the aggressors seemed obvious to many observers, the Israel Defense Forces liberated Judea and Samaria, the Gaza Strip, the Golan heights and the Sinai.

The State of Israel has shown great moderation and a spirit of sacrifice for peace, in particular by abandoning to Egypt the territory of Sinai which it had occupied militarily since 1911 while recognising Ottoman sovereignty, as was the result of diplomatic correspondence (in French) between the Egyptian Government and the Sublime Gate. This is despite the fact that the test of effectiveness, notably in the 1953 Minquiers and Écrehous judgment of the International Court of Justice, pitting France against the United Kingdom, was largely in favour of Israel as successor to the Ottoman state in that territory.

-The 1993 Oslo Accords were intended to replace dialogue with violence in the Arab-Israeli conflict by ensuring a status of autonomy for the Arab population of Judea and Samaria. These agreements were almost immediately violated by Arafat, who unleashed a series of acts of terrorism against the Israeli population, killing more than a thousand innocent male citizens, women and children and injuring thousands more.

Moreover, as Israel had renounced any physical presence in the Gaza Strip, it immediately became a base of permanent aggression against the Israeli civilian population. Hamas, whose charter explicitly provides for the disappearance of Israel and the massacre of its Jewish inhabitants, maintains the population in a systematic hateful subjection that has dismantled the modern water system that Israel had installed there to make rockets packed with explosives regularly sent to Israeli civilians.

-Mandatory demonstrations along the fence separating Gaza from Israeli territory are an opportunity for the terrorist group to place charges exploding in the passage of Israeli vehicles, not to mention attempts to infiltrate armed men to kill or carry out kidnappings.

In this context, Mrs. Fatou BENSOUDA’s choice to publicly claim that Israel’s necessary response to attacks on this sovereign state would constitute « war crimes » constitutes a shocking counter-truth and a gross violation of the ICC’s status.

-The Palestinian Authority has a status defined by an agreement countersigned by the powers that have guarantored it and it is by no means a state. That many states and institutions have violated this status does not change this.

-The ICC can only put its jurisdiction at stake in the alternative when the judicial system in the regions concerned is failing. However, it is well known that hundreds of Palestinian litigants regularly address israel’s courts and in particular to the Supreme Court of Israel under the particularly liberal procedure of the BAGATZ (High Court of Justice) and that they often obtain satisfaction with it. To claim that the Israeli judicial system would fail is a crude untruth.

-The ICC refrains from judging alleged facts prior to its constitution.

-Israel and the UNITED States have terminated their membership of the Court and no non-member state can be appealed to the Court.

-The Palestinian Authority does not articulate any new facts that would justify questioning an earlier decision by an ICC body to declare itself incompetent in the face of this manifest attempt to politicize a court whose credibility would be severely undermined if it complied.

-In a speech in Dakar, the Secretary General of the very powerful Organization of the Islamic Community, which includes 56 states, Mr. E. Ihsanoglu as early as 2008, planned to do everything to bring the State of Israel to the International Criminal Court in one way or another. This is, therefore, an attempt to carry out a long-term plan, which nevertheless constitutes a gross distortion of the Court’s vocation.

The idea of the mere possibility of the conviction of political or military figures of the Jewish State, when these persons have done only their duty in accordance with public international law which is to ensure the protection of the citizens in their care should be intolerable to any person in good faith.

It is in your power to stop this travesty of justice, this outrageous politicization and to avoid the definitive collapse of the moral foundations that form the basis of the very existence of the Court.

I beg you to believe, Judge, in the assurance of my sincere respects.

Leon Rozenbaum,

Lawyer and Notary in Jerusalem

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