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

It is one thing to depict generally what the ICC does and the conflicts over its behaviour. It is another to look at those deeds from the perspective of what it should do or what it is expected to do. The core issue of jurisdiction is over “national jurisdiction,” that is, when a country being investigated claims it has both the competence and record of examining any charges of war crimes, crimes against humanity and genocide, though accusations of aggression belong in a separate category for consideration.

Whatever the shortcomings of the ICC, its failure to adjudicate or indict serious human rights offenders on a scale incomparably worse than Israel allegedly does is a false flag. Not because the ICC always investigates such offenders. Rather, the jurisdictional issue – as in the case of China – leads the ICC to different conclusions than in the case of Israel, Russia or the US. The reasoning may be faulty. It may be challenged. But the ICC does have a rationale for exempting China, even though China has a horrendous human rights record in its treatment of Uighurs.

Further, just because neither Israel, nor Russia nor the US ratified the Rome Statute, does not mean that the ICC does not have jurisdiction. If the offence took place on territory over which a state member has a legitimate claim, the ICC could have jurisdiction if the offence took place after 1 July 2002. The Rome Statute was agreed to on 17 July 1998 and ratified sufficiently by 1 July 2002 to come into force; over 120 states have ratified the treaty.

In addition to the issue of jurisdiction, the statute deals with its structure and function. With respect to the latter, there is no disagreement in insisting that the ICC is restricted to investigating and trying only four specific crimes – war crimes, genocide, crimes against humanity and aggression – and only those crimes which took place after 1 July 2002.

Nor is there any dispute to restricting such investigations only to the behaviour of individuals who are members of states that lack either the capacity or the will to launch such investigations themselves. But who decides on whether a state has the capacity, the competence or the motivation? When the court determines a lack of competence, will that be the result of an ICC investigation into competence or will, or can one be launched that is complementary to a national one? But if the abuse of human rights occurred only on the territory of the state and the state in not a signatory to the Rome Statute and the Security Council does not override that opting out clause for jurisdiction, then the ICC lacks jurisdiction.

Thus, the claim for jurisdiction is that the alleged abuse took place on the territory or claimed territory of a signatory state. Alleged abuses in Gaza and even in the West Bank and East Jerusalem as well as those in Afghanistan by the US or in Crimea and Donbass by Russia can be claimed as falling within ICC jurisdiction. In other words, non-ratification of the Rome Statute is insufficient to exempt a state an exemption from an investigation. The ICC has jurisdiction if the alleged crimes took place on the territory or claimed territory of a State Party. The ICC also has jurisdiction if the crimes were referred to the Prosecutor by the UN Security Council, but that seems moot in the cases of Israel, Russia and the US.

Although the ICC may begin an investigation before issuing a warrant if the UN Security Council refers the alleged charges to it (or if a State Party requests an investigation), generally, to conduct an investigation on its own initiative, the Prosecutor must obtain authorization to conduct a probe from a Pre-Trial Chamber of three judges.  The ICC did obtain the proper authorization in the case of Israel, though by a vote of 2:1. In that 2:1 decision to authorize the investigation, Peter Kovacs offered a 154-page dissent and insisted that the decision had “no legal basis in the Rome Statute and even less so in public international law.”

Kovacs has a record of dissenting, such as on a dispute over Greek and Cambodian vessels and in the indictment of Ahmad Al Faqi Al Mahdi of war crimes in the Republic of Mali. As in the Israeli case, he shared “a misapprehension of the role of the Pre-Trial Chamber.”  He has a conservative and non-expansive view of the functioning of the ICC.

This, however, does not deal with the restriction to the court being only a court of “last resort” or the basis on which it can determine the lack of competence or will of the state to which the members accused of a crime belong. Further, unless the ICC conducts an investigation into competence and will first, any assumption of incompetence or lack of will can be claimed to be bogus. “The core mandate of the ICC is to act as a court of last resort with the capacity to prosecute individuals for genocide, crimes against humanity and war crimes when national jurisdictions for any reason are unable or unwilling to do so.” But if the court fails to conduct an investigation into competence and will and therefore fails to make a separatee finding on this issue, any action dependent on such investigations and findings can be claimed to be invalid. Commentators like Lawrence A. Franklin (4 March 2021) will use such an argument to claim that the court’s investigations are illegitimate and irrelevant.

However, it is simply not the case, as many commentators declare, that just because a state is not a signatory to the Rome Statute, this does not exempt the individual members of such a state from being investigated. Nor is the accusation that a non-state actor brought the charges before the court since Palestine is recognized as a state by the court. Hamas is the de facto political authority in Gaza and the Palestinian Authority is in the West Bank, at the very least in Areas A and B. Neither party need have equal status to the government of Israel in bringing a charge.

The parties must have some recognized governing jurisdiction over the territory on which the crimes allegedly took place. The real question is whether the ICC was “constitutionally competent” to decide whether or not Palestine is a state as defined by the Rome Statute. For even the UN General Assembly 2012 decision to grant Palestine observer status as a “non-member state” does not count, since even the UN General Assembly is only an advisory body without legal jurisdiction to make such a decision.

Is the charge of the court’s hypocrisy justified? The fact that no charges have been laid against the Syrian government for its use of chemical weapons against its own citizens or China’s mistreatment of the Uighurs simply means that the Security Council did not authorize such a charge. The ICC in these types of cases, where there is no signatory state to bring the charge because it can claim territorial jurisdiction, or when the UN Security Council does not authorize it to investigate, cannot even initiate an investigation.

As the ICC begins to flex its legal muscles, more and more states will be upset. More and more states will withdraw. But as long as they were members when the alleged crimes took place, such actions will not exempt them from an investigation. More seriously, however, if enough member states get “pissed off” and withdraw their legal and/or financial support for the ICC, the ICC will be in practical trouble. The most serious source of such disaffection is emerging in Africa in terms of numbers and in Europe in terms of financial and moral support.

However, in terms of influence and power, the US is the most important dissenter. In 2016, after Chief Prosecutor Bensouda launched the investigation into alleged war crimes by US forces in Afghanistan, Donald Trump, then president, imposed sanctions on Bensouda and her top aide, freezing any American bank accounts and revoking US visas.

In the case of the investigation of Israel, the US, Canada, the Czech Republic, Austria, Germany, Hungary, Australia, Brazil and Uganda have each made claims that the investigation of Israel is not justified. These countries have filed petitions claiming that the ICC lacks jurisdiction This case has been made succinctly by the “Friends of Israel Initiative” who on 19 February wrote an open letter to the new ISS Chief Prosecutor, Kanim Khan, who will take up his role on 15 June 2021.

Dear Mr. Khan,

Congratulations on your election as Chief Prosecutor of the ICC. We are the Board members of the Friends of Israel Initiative, an independent body of former heads of government, cabinet ministers and others. We came together out of concern for the unprecedented campaign of delegitimization against Israel waged by the enemies of the Jewish State and supported by numerous international institutions.

We are writing to urge you to re-evaluate the decision taken by your predecessor, Ms. Fatou Bensouda, to investigate Israel over “alleged crimes committed in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014.” As you are aware, the ICC’s Pre-Trial Chamber recently adjudged that the Court has jurisdiction over these allegations.

The Friends of Israel Initiative has opposed this investigation since a preliminary examination was initiated at the request of the Palestinian Authority in 2015. In addition to the substance of the allegations against Israel, which we firmly believe to be spurious, we have several other serious concerns.

Israel is not a party to the Rome Statute and has not consented to the Court’s jurisdiction. The request for an investigation was made by an entity which is not a sovereign state within the terms of the Rome Statute, under which only sovereign states may delegate jurisdiction to the Court over their territory. This view is strongly supported by the government of the United States of America, as well as the governments of Rome Statute state-parties Germany, Austria, the Czech Republic, Hungary, Australia, Canada, Uganda and Brazil, as well as by leading international law scholars.

In assigning itself jurisdiction, the ICC disregards and undermines the Oslo Accords, an internationally binding set of agreements that remain in force and continue to be recognized by both Israel and the Palestinian Authority. Under the Oslo Accords, the Palestinian Authority has no criminal jurisdiction [my italics] over Israelis anywhere in the West Bank, the Gaza Strip or East Jerusalem. That jurisdiction, by agreement of both Israel and the Palestinian Authority, remains with Israel alone. Therefore, even if it were a state-party, the Palestinian Authority could not delegate any such authority to the ICC.

As you know, the ICC is mandated to investigate and try the gravest crimes of concern to the international community, as a court of last resort, when national jurisdictions are unable or unwilling to do so. This does not apply to Israel, which has a long-established and internationally respected legal system with a track record of investigating such crimes and prosecuting individuals when appropriate.

In addition to these concerns over jurisdiction, we believe that, by commencing this investigation, the ICC would actively undermine the prospects for peace between Israel and the Palestinians. Recent months have seen unprecedented progress in the Middle East peace process, with peace agreements signed between Israel and the UAE, Bahrain, Morocco, and Sudan. Building on these developments, the new U.S. administration may now have an opportunity to further negotiations between Israel and the Palestinians. For an international body with the prestige of the ICC to support the abrogation of the Oslo Accords and unilaterally endorse one side’s claims in a bilateral dispute would cripple the likelihood of future negotiations.

Finally, we have profound concerns over the effects of such an investigation on the ICC’s judicial integrity and, therefore, on its mandate of achieving international criminal justice, which is of the utmost importance in an increasingly turbulent world. It is essential that the Court continue to observe the tenets of international law scrupulously, to operate within the mandate proscribed for it by the Rome Statute, and to avoid acting through political motivation or through the appearance of such. We believe that pursuit of this fundamentally flawed investigation jeopardizes all of these objectives. We agree with the words of the ICC Pre-Trial Chamber’s presiding judge, Peter Kovacs, who wrote: “I find neither the Majority’s approach nor its reasoning appropriate in answering the question before this Chamber, and in my view, they have no legal basis in the Rome Statute, and even less so, in public international law.”

We wish you every success in your new role as ICC Chief Prosecutor. We are also willing to provide advice or assistance should you wish.

Hon. Stephen Harper, Chairman, Former Prime Minister of Canada

Hon. José Maria Aznar, Honorary Chairman, Former President of Spain

Hon. John Howard, Former Prime Minister of Australia

Hon. Luis Alberto Lacalle, Former President of Uruguay

Mr. John Baird, Former Minister of Foreign Affairs of Canada

Mr. Karl-Theodor zu Guttenberg, former Defense Minister of Germany

Ambassador Giulio Terzi, Former Minister of Foreign Affairs of Italy

Ambassador Zoran Jolevski, Former Minister of Defense and Ambassador of Macedonia

Mr. Uri Rosenthal, Former Minister of Foreign Affairs of the Netherlands

Mr. Carlos Bustelo former Minister of Industry and Energy of Spain

Mr. Elliot Abrams, Former United States Special Representative for Iran and Venezuela

Col. Richard Kemp, Former British Army Commander

Professor Andrew Roberts, British historian, visiting professor at King’s College London

Mrs. Fiamma Nirenstein, Italian journalist, author and politician

Mr. George Weigel, Distinguished Senior Fellow of the Ethics and Public Policy Center

Mr. Rafael Bardají, Executive Director Friends of Israel Initiative

The most novel part of this objection to ICC jurisdiction is the claim that an ICC investigation would abrogate the terms of a recognized international treaty between the Israelis and the Palestinians, the Oslo Accords, and also undermine the prospects of future progress towards a peace agreement.

However, although the jurisdictional issue is crucial to any scholar, most people are concerned with the substance of the claims. Did Israel possibly commit war crimes and crimes against humanity and even aggression in the instances cited? I will take that issue up in the next blog.

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