Photo: Prof. Yuval Shany
By Prof. Yuval Shany and Col (Res.) Adv. Liron Libman
Courtesy the Israel Democracy Institute
What is the International Criminal Court?
The International Criminal Court (ICC) is an international tribunal that considers charges against individuals accused of grave international crimes (war crimes, crimes against humanity, genocide, and aggression). It was established pursuant to a treaty adopted in 1998 and effectively began operations in 2002. Today the court has 123 member states and is conducting legal proceedings related to 12 different situations where international crimes are alleged to have taken place.
Israel is not a member of the court, but the “State of Palestine” joined the ICC in 2015, and empowered it to address international crimes committed on its territory after June 13, 2014 (shortly before the start of Operation Protective Edge in Gaza). Like the International Court of Justice (ICJ), which ruled on the legality of the separation fence/wall 15 years ago, the ICC sits in The Hague (but is a separate organization with totally different jurisdiction).
Does the ICC in The Hague have any jurisdiction with regard to Israel?
The ICC is empowered to prosecute crimes committed by nationals of its member states or on their territory. It can also prosecute crimes with special authorization by the UN Security Council or by a state that has not joined the court.
The current proceeding deals with a complaint filed by the ‘State of Palestine’ alleging crimes committed on its territory — the West Bank (Judea, Samaria, and East Jerusalem) and the Gaza Strip. If Palestine is indeed a member state and if those territories belong to it, then the ICC is empowered to consider international crimes committed there since 2014, whether they were committed by Israelis or by Palestinians.
What happened to the Palestinian complaints between 2015 and 2019?
In 2015, Palestine asked the ICC to investigate alleged charges of crimes committed on its territory since 2014. In the five years that have elapsed since then, the Chief Prosecutor, Fatou Bensouda, has been conducting a preliminary examination, during which she has collected information providing her with a reasonable basis to believe that crimes have been committed by both sides in the conflict. She also probed whether the conditions existed for the ICC to assert jurisdiction; that is, whether the ‘State of Palestine’ is actually a state and whether the crimes were committed on its territory, whether Israeli and Palestinian authorities conducted investigations of such crimes in a way that makes the ICC’s jurisdiction redundant (the complementarity principle) and whether the specific conditions of gravity and the absence of interests of justice that would justify closure of the case have been met.
What did the Chief Prosecutor decide at the end of her preliminary investigation?
The Chief Prosecutor decided that the ‘State of Palestine’ could empower the ICC to conduct proceedings—both because it has officially acceded to the statute that established the court and because, from a functional perspective, it is sufficiently like a state for the purpose of exercising criminal jurisdiction or authorizing an international body to exercise criminal jurisdiction. Bensouda also determined that the international community recognizes the entire territory of the West Bank, including East Jerusalem and the Gaza Strip, as the territory of the Palestinian state (whether existing today or in the future). Nevertheless, because these are complex legal issues on which the court has never expressed an opinion, the Chief Prosecutor requested that the ICC confirm her legal position before she proceeds further in her investigation. She has also asked the Court to issue its decision within 120 days.
What is the Chief Prosecutor’s position with regard to the crimes that should be investigated?
In her submission to the ICC, the Chief Prosecutor writes that on the basis of her preliminary investigation she believes that Israelis and Palestinians committed the following crimes:
Israelis: The transfer of civilian populations to occupied territory after 2014 (the activity to expand Israeli settlements on the West Bank and in East Jerusalem); deliberate or disproportional attacks on civilians and on civilian and medical targets during Operation Protective Edge. In addition, it is possible that sufficient information may be collected in the future pointing to the use of disproportionate force to disperse demonstrations along the Gaza border fence, beginning in 2018, to the point where that constitutes an international crime.
Palestinians: Deliberate attacks by Hamas and other Palestinian factions in Gaza against Israeli civilians, the use of human shields, depriving protected persons of the rights of fair and regular trial and willful killing and torture or inhuman treatment and/or outrages upon personal dignity.
With regard to the other conditions for the exercise of the court’s jurisdiction, the Chief Prosecutor believes that Israel may be able to make a case of complementarity with regard to the use of force by the IDF (but not with regard to the settlements). From her perspective, there are no other bars to her pursuing the criminal investigation.
What are the implications of the decision for Israeli citizens?
At present, no final decision has been taken to advance from the stage of the preliminary examination to a criminal investigation, but the Chief Prosecutor’s request to the court is a significant step in this direction. If the ICC adopts the Chief Prosecutor’s position with regard to its jurisdiction, a criminal investigation will be launched in the second half of 2020 into suspicions of the commission of the crimes mentioned in the request and perhaps also additional crimes that may be uncovered by the investigation. The investigation could lead to the filing of charges and the issuance of arrest warrants against top government and military figures in Israel, as well as against the heads of the military wing of Hamas and other Palestinian terrorist organizations. This would mean that each of the 123 member states of the ICC would have to arrest and extradite to the court any suspect who is found on its territory and against whom an arrest warrant has been issued. The filing of charges against its leaders could also have a severe impact on Israel’s image around the world and adversely affect its foreign relations.
What jurisdiction does the ICC have over Israeli citizens?
Should it determine that it has the authority to conduct an investigation, the ICC would deal with the criminal responsibility of individuals, and not of states. It does not have its own police force, but rather each of the 123 member states is obligated to cooperate with it with regard to investigating, arresting, and handing over suspects.
Should Israeli military officers and politicians be worried?
The immediate practical concern from Israel’s point of view is the limits that would be imposed on the ability of senior Israeli figures to travel abroad. The ICC is a court of last resort, whose goal is to ensure that those who bear the greatest responsibility for the most serious international crimes cannot escape punishment. This is why it focuses on the top—national leaders, government ministers, and military and security service commanders: on generals, not on junior officers and soldiers.
What is Israel’s position on the matter?
Several hours before the Chief Prosecutor’s announcement, Israel’s Attorney General published a memorandum detailing Israel’s arguments that the ICC lacks jurisdiction to investigate the Palestinian charges. Israel’s main point is that the ‘State of Palestine’ does not satisfy the conditions under international law for the existence of a state and that the territory in which the alleged crimes were committed is territory whose legal status has yet to be determined. Consequently, the Palestinians cannot delegate to the ICC powers that pertain to states with regard to territory over which it is not sovereign. Israel also believes that the Oslo Accords impose limits on the Palestinians’ ability to authorize the court to exercise legal jurisdiction. Beyond that, Israel does not believe that the conditions required for the crime of the transfer of civilian populations to occupied territory have been met, because of the debate over the status of the territory in question, and that in any case the required threshold of gravity has not been crossed.
As for the use of force by the IDF, Israel’s position is that the IDF acts in accordance with the laws of war, and that any allegation of a violation thereof is investigated in an independent and professional manner by the office of the IDF Military Advocate General, in coordination with the State’s Attorney General and under the supervision of the High Court of Justice.
Israel will now have to decide if and how to take part in the proceedings before the ICC with regard to its jurisdiction. According to media reports, Israel has been in regular contact with the Chief Prosecutor’s office throughout her preliminary investigation, but it is possible that it will prefer to boycott the proceedings in the future, as it did with regard to the case relating to the legality of the separation fence/wall.
Were political influences or pressures exerted on the Chief Prosecutor?
The Chief Prosecutor has been conducting her preliminary investigation for five years. It is obvious that she and her staff have had formal and informal contact with many parties—Palestinians, Israelis, and others. One can assume that the Chief Prosecutor views herself as an independent and impartial jurist, but it is clear that she understands the overall political context in which she is working. For example, the Chief Prosecutor asked the ICC’s pretrial panel to approve her inquiry into the situation in Afghanistan, including the suspicion of war crimes committed there by Americans. Shortly thereafter, the United States revoked Bensouda’s visa. In addition, there has been extensive criticism that the ICC has focused exclusively on countries in Africa, and the Chief Prosecutor is well aware of this. It is possible that this criticism encouraged her to recently open investigations into cases outside of Africa (Georgia, Myanmar/Bangladesh, Afghanistan, and Israel/Palestine).
Could Israeli actions and statements by politicians, such as Netanyahu’s recent proposal to annex the Jordan Valley, have been damaging and influenced the Chief Prosecutor’s decision?
It is impossible to assert clearly whether, had certain statements not been made, the outcome would have been different; but it is certain that they were not helpful. In her submission to the ICC, the Chief Prosecutor explicitly mentions Netanyahu’s statement of his intention to annex part of Judea and Samaria after the elections. The context is that this supports the assertion that Palestine is a state, on the basis of the argument that unlawful actions to deny the Palestinians’ right to self-determination, such as the annexation of territories, could reduce the requirement for a state to be recognized, especially the requirement of an effective government. The Chief Prosecutor also emphasizes that alleged crimes are still being committed on a regular basis—the expansion of the settlements—and that this is another point in favor of an investigation.
What are the odds that an investigation will indeed be launched?
It is hard to say. Even if an investigation is begun, it must be recalled that the ICC’s resources are limited and that it is dealing simultaneously with other cases. To date it has opened investigations of twelve situations, ten of them in Africa, as well as in Georgia and in Myanmar. There are also nine preliminary examinations in progress. Since it was established there were a total of 27 cases before the Court. To date, seventeen years after the Court began operation in The Hague, only four cases have ended in conviction and punishment. Three others ended with acquittal, and most of the cases are still pending—often because the accused have not appeared in court.
Can Israel influence the proceedings and how should it act?
The ICC is not supposed to conduct an investigation where the relevant state does so itself and holds its citizens accountable for their actions. The Chief Prosecutor herself notes in her submission to the court that, unlike her determination that there is no issue of complementarity with regard to the crimes committed by Hamas, because there have been no investigations into them, she cannot currently make such a statement with regard to the allegations of Israeli war crimes during Operation Protective Edge.
The situation is different with regard to the settlements, because there is a governmental policy involved in this case. The Chief Prosecutor refers to the Israeli High Court of Justice, which is recognized as being independent, but notes that whereas it hears specific charges regarding the lawfulness of particular settlements (when there are allegations regarding privately owned Palestinian land), it has avoided dealing with the issue of the lawfulness of the settlements per se, on the grounds that this is a political question. In general, it seems that with regard to the ICC it would be advisable for the Israeli government to act via both legal and diplomatic channels.
Can the Palestinians withdraw their request to the Court and thereby put an end to the proceedings?
A member state that is a party to the Rome Statute can withdraw from it, by notice to the UN Secretary General, which takes effect after one year passes. However, this would not detract from that state’s obligation to cooperate with an investigation in progress or remove the Court’s jurisdiction with regard to a case pending before it before the state’s withdrawal took effect (Article 127 of the Rome Statute).
Professor Yuval Shany is the Hersch Lauterpacht Chair in International Law and former Dean of the Law Faculty of the Hebrew University of Jerusalem. He also currently serves as Vice President for Research at the Israel Democracy Institute, and as a member of the UN Human Rights Committee.
Col. (Res.) Adv. Liron Libman served in the Israel Defense Forces (IDF) as Chief Military Prosecutor and Head of the International Law Department. Following Operation Cast Lead and the Goldstone Report, Libman participated in the international legal campaign about the potential ramifications of these developments.