The International Criminal Court (ICC) and Israel: The Global Context

by

Howard Adelman

By a vote of 2:1, the International Criminal Court (ICC) Pre-trial Chamber on 5 February 2021 endorsed the recommendation of International Criminal Court ICC Prosecutor Fatou Bensouda to open a full war crimes probe into IDF conduct and settlements. (In the next blog, I will analyze the dissent.) The (ICC) sent a one-and-a-half page notice informing Israel that the ICC intended to launch a probe into possible war crimes committed by Israel. There will also be a probe into war crimes committed by Palestinian terrorists.

The letter to Israel detailed the scope of the inquiry. The three main areas the probe will cover include:

• the 2014 war between Israel and Hamas (Operation Protective Edge)
• Israeli settlement policy
• the 2018 Great March of Return protests along Gaza’s border with Israel.

The probe formally began on 3 March 2021. However, the initiative began several years ago. An Outreach Decision (ICC-01/18-2) for the victims began on 13 July 2018. Palestine PTCI Decision ICC-01/18-1, assigning the situation in the State of Palestine to Pre-Trial Chamber I, began a month earlier on 24 May 2018.

Israel, primarily through its Foreign Ministry, launched a broad campaign against the ICC and its probe. While discussing the possibility of a renewed Iran deal and the Iranian presence in Syria, Israeli Foreign Minister Gabi Ashkenazi met with Russian Foreign Minister Sergey Lavrov to present the Israeli case against the ICC probe. Referencing Israeli and other experts on just war theory and applicable legal norms, Israel’s Strategic Affairs Ministry (the Ministry of Strategic Affairs and Public Diplomacy (originally set up in 2006 to combat the BDS campaign) launched a new website presenting Israel’s position against the ICC in reference to jurisdiction over both IDF conduct and settlements.

The core of the argument on jurisdiction cites:

1. the original intent of the ICC when it was founded in 2002;
2. the objective of ending impunity;
3. ICC being restricted to functioning as a court of last resort if a state lacks the competence to pursue such inquiries or is unwilling to do so;
4. the failure of the ICC to determine a lack of national competence by the Israeli state, a prerequisite for launching a criminal investigation into the conduct of its citizens;
5. the even stronger claim that the ICC only has jurisdiction when a sovereign state delegates such jurisdiction – which then would arguably exempt the Palestine probe as well since Palestine, though recognized as a state by over one hundred and twenty countries, is not a sovereign state [The ICC Assembly of State Parties has recognized Palestine as a state.];
6. Israel, in contrast, is a sovereign state with a legal claim over the territory upon which the Palestinians invited a probe over settlements;
7. The probe is a product of a politicized process;
8. The probe is in contravention to well-established legal principles of international law;
9. The probe is based on a misreading of the Statute of Rome.

The Rome Statute was adopted in 1998 as a way to pursue some of the world’s worst atrocities: genocide, war crimes and crimes against humanity. At its peak, 124 countries belonged.  Israel was not one of them. Nor was the United States. Nor India or China for that matter. Other countries have alleged they were improperly targeted and withdrew.

Israel has not formally responded to the original ICC letter which gave Israel 30 days to reply. The question remains open whether Israel will engage with or shun the ICC formally whatever it does informally. In addition to the website launched by Israel as a response, President Reuven Rivlin of Israel issued a broadside insisting that, “Any attempt to pressure Israel through international bodies and the cynical political exploitation of international law is doomed to fail and will contribute nothing to improving relations between us and the Palestinians. We will never apologize for the right and the duty to protect our citizens from all threats to their security. We have seen the damage that politicization has done to UN human rights bodies, and see the damage being done to the International Criminal Court right now through political pressure.”

These words were modest compared to those of President Emmanuel Macron of France who called the decision of the ICC to launch the probe “morally and legally bankrupt.” Sixty-nine senators signed a preemptive letter in May 2020. Fifty-seven US senators signed an open letter drafted by Sens. Rob Portman (R-OH) and Ben Cardin (D-MD) criticizing the ICC’s decision to launch a formal investigation of Israel. The final version of the letter sent recently on 11 March praised Secretary of State Tony Blinken “for denouncing the decision and expressed concern over the ICC’s actions.”

In contrast, the Palestinians had invited the probe, including an inquiry into the conduct of Palestinians, and pledged full cooperation with the court. Minister of Foreign Affairs and Expatriates of Palestine, Riyad al-Maliki, met with the Chief Prosecutor to establish how the two bodies would collaborate “to protect the interests of the victims and prevent impunity.”

A major claim has been made that the ICC targets Israel which already has a robust legal system based on just war doctrine while the court ignores the crimes committed by the citizens of other states. However, there is plenty of evidence to indicate that the Court has been exercising its legal muscles in the last year or so. The ICC has simply become more robust recently in its pursuit of criminal prosecutions for war crimes as Chief Prosecutor is in her last hurrah and will be replaced in June by British lawmaker Karim Khan in June. Look at the following investigations:

• American conduct in Afghanistan and in Guantanamo
• Russian behaviour in Crimea and Eastern Ukraine
• Nigeria in its fight against Boko Haram.

One can also look at the ICC’s examination of:

• Myanmar’s ethnic cleaning of the Rohingya
• Turkey’s aggression and persecution of Kurds
• Turkey (and Azerbaijan) aggression against Armenia
• Syria’s use of illegal chemical weapons in 2013 during its civil war
• Iraq, Afghanistan, Colombia, Georgia and Bangladesh.
• Democratic Republic of the Congo, Uganda, Sudan, Central African Republic, Kenya, Libya, Ivory Coast, Mali, Burundi, Gabon, and Niger.

In March 2020, the ICC Judge Piotr Hofmański authorized the prosecutor to launch an investigation into allegations of war crimes by United States military and intelligence personnel, Afghan forces and the Taliban in Afghanistan in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003. Secretary of State Mike Pompeo decried the court’s decision and dubbed it a “truly breathtaking action by an unaccountable political institution, masquerading as a legal body,” especially galling when this took place just days after the United States signed a historic peace deal on Afghanistan.

There was a very different coincidence. The Senate had just tabled its report on the Central Intelligence Agency’s harsh treatment of detainees, amounting to torture. The ICC had just announced a preliminary investigation of alleged detainee abuse by US forces in Afghanistan (not Guantanamo) since Afghanistan had joined the court in 2003. Will the Senate investigation and report pre-empt the ICC one? Or will it instigate an even broader inquiry? The rules of jurisdiction will be key.  

Later that same year on 11 December, the ICC Prosecutor concluded her preliminary examination in Ukraine and announced that she would seek a full investigation into war crimes and crimes against humanity committed in Ukraine, including murder and torture during the ‘EuroMaidan’ protests in 2013 - 2014, and war crimes and crimes against humanity committed by all sides to the conflict in eastern Ukraine since 2014, and in Crimea after the peninsula’s Russian occupation and illegal annexation in 2014. Bensouda’s office has been conducting an examination into possible atrocities in the conflict in eastern Ukraine at the invitation of Kyiv since 2014 when Russia invaded and annexed Crimea. Bensouda concluded that she had “reasonable basis to believe that a broad range of conduct constituting war crimes and crimes against humanity have been committed.”

The ICC investigation was initially based on the report entitled “Russian War Crimes in Ukraine in 2014″ in turn based on 60 interviews conducted by Polish and Ukrainian volunteers with prisoners who alleged physical and mental torture as well as murders of captives. The report, submitted in 2016 by Deputy Speaker of the Polish Sejm, Małgorzata Gosiewska, observed that, “there is a reasonable likelihood that war crimes and crimes against humanity were committed in the territory of Ukraine during the period covered by the report,” divided into three categories: committed during armed hostilities, committed during detentions and arrests, as well as committed in Crimea. The preliminary inquiry completed by prosecutor Fatou Bensouda in December concurred with that conclusion: “the context of the situation in Ukraine constituted war crimes and crimes against humanity within the jurisdiction of the International Criminal Court.” However, she left the final decision on whether to prosecute to her successor after her departure on 15 June 2021.

As far as the charge of Russian aggression against Ukraine, the court concluded, “The information available suggests that the situation within the territory of Crimea and Sevastopol amounts to an international armed conflict [my italics] between Ukraine and the Russian Federation. This international armed conflict began at the latest on 26 February when the Russian Federation deployed members of its armed forces to gain control over parts of the Ukrainian territory without the consent of the Ukrainian Government. The law of international armed conflict would continue to apply after 18 March 2014 to the extent that the situation within the territory of Crimea and Sevastopol factually amounts to an on-going state of occupation [my italics].  A determination of whether or not the initial intervention which led to the occupation is considered lawful or not is not required.” The report also concluded that the situation in Donbas was an international conflict between Russia and Ukraine and not a civil war.

On release of the report on 14 November 2020 before the December ICC announcement, President Vladimir Putin issued a decree announcing his country’s intentions to “no longer be a party” to the ICC’s founding treaty, the Rome Statute.” In fact, although Russia signed the Rome Statute, it never ratified the treaty. Russia announced that it would withdraw from the ICC because the latter “failed to meet the expectations to become a truly independent, authoritative international tribunal.”

Three African nations — South Africa, Burundi and Gambia — followed suit and have made official decisions to leave, citing the Court’s persecution of African states. Gambia’s Sheriff Bojang declared, “This action is warranted by the fact that the ICC, despite being called the International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.”

On the same day, 11 December 2020, that the ICC announced its intention to launch a full-scale probe into Russian possible war crimes, the ICC prosecutor urged that an inquiry be launched into both Boko Haram and Nigeria. Unlike Russia, Nigeria actually ratified the Rome Statute on 27 September 2001. Though the vast majority of crimes were by “non-state actors”, the Nigerian Security Forces also needed investigating claimed the ICC. Boko Haram was accused of murder, rape, sexual slavery, torture, persecution, hostage taking and enlisting children under the age of 15 into armed groups. In the ICC preliminary examination, it found a “reasonable basis to believe” that Boko Haram and its splinter groups had committed war crimes and crimes against humanity in Nigeria, through “murder, rape, sexual slavery and torture.” Boko Haram had already claimed responsibility for the massacre of farmworkers in an area outside Borno state’s capital Maiduguri in which dozens of labourers were mowed down by gunmen on motorbikes. Agricultural workers were also tied up and had their throats slit.

Members of the Nigerian Security Forces (NSF) were also suspected of having committed crimes. The Socio-Economic Rights and Accountability Project (SERAP) called for an end to impunity and sent a petition to ICC prosecutor Fatou Bensouda urging her to “promptly investigate reports that Nigerian authorities, military, and some politicians have used/ and are using thugs, soldiers and security agents to intimidate, harass, attack and kill peaceful protesters in several parts of Nigeria, including Abuja, Lagos, Edo, Osun, Plateau, and Kano states.”

The outlier to this pattern is China and its treatment of the Uighurs. In the same period as the Russian and Nigerian decisions, the ICC prosecutors rejected calls by exiled Uighurs to investigate China for alleged genocide and crimes against humanity. The Uighurs had prepared for the ICC a huge dossier of evidence in July that accused China of detaining more than one million Uighurs and other mostly Muslim minorities in re-education camps. Women were allegedly forcibly sterilised.

The ICC office of prosecutor Fatou Bensouda claimed in its report that it was unable to act because the alleged acts happened on the territory of China, which is not a signatory to The Hague-based ICC. ICC approved probe into Myanmar’s alleged crimes against Rohingya although Myanmar is not a member of the ICC. But the Security Council, on which China has a veto, could authorize such an investigation, including one into the behaviour of the military since the coup as security forces have used increasingly violent methods to suppress the daily protests, Over two hundred have been killed thus far, thousands have been detained and Independent United Nations human rights investigator Thomas Andrews told the U.N. Human Rights Council in Geneva that the Myanmar military had committed killings, torture and persecution that may constitute crimes against humanity.

The key jurisdictional issue is whether the alleged crime took place on the territory of a state that at the time was a member of the ICC. Thus, Russia’s withdrawal was of no help in stopping a probe. Nor were America’s or Israel’s since, though neither became members, the alleged crimes took place on territories of ICC members. With respect to China, “This precondition for the exercise of the court’s territorial jurisdiction did not appear to be met with respect to the majority of the crimes alleged.” The ICC also concluded that there was also “no basis to proceed at this time” on separate claims of forced deportations of Uighurs back to China from Tajikistan and Cambodia.

What about the Syrian situation? Syria had never ratified the Rome Statute or applied to join the ICC. If the Syrian situation of using illegal chemical weapons against its own citizens was referred to the ICC, can the Court prosecute Syrian authorities for use of chemical weapons in Syria as Syria is not a party to the Statute of the International Criminal Court. The ICC could have jurisdiction if there was a Security Council referral (Arts 12 & 13, ICC Statute); attacks involving the use of chemical weapons might be prosecuted as part of a charge of crimes against humanity.

Within this global context, the assessment of ICC jurisdictional authority over Israeli actions must be assessed.