News & Commentary

Israel and The ICC: Will They or Won’t They?

Israel’s deadline to respond to the ICC’s probe into war crimes looms closer, but should Jerusalem engage with the Court at all?

Tomorrow (9 April 2021) Israel is due to provide a response to a letter sent last month from Fatou Bensouda, Chief Prosecutor of the ICC, of an investigation being launched into Israel’s alleged war crimes. Those with a more sympathetic attitude towards the ICC, which only began sittings a mere 19 years ago, have interpreted the Court’s announcement as conciliatory,[1] believing that cooperation with proceedings will be of greater benefit to Israel. There are, however, strong legal and diplomatic arguments to refuse or, at the very least, to limit engagement.

Playing to ICC Politics

Since its creation, the ICC has been plagued by a paradox, irreparably entangled in its constitutional fabric: on the one hand, the ICC prides itself on offering justice which is independent of politics; on the other, it is wholly dependent on the full corporation of states to enforce its jurisdiction – without political support, it cannot investigate on the ground, arrest suspects or obtain evidence. In particular, it is well established that the ability of the UN’s Security Council to refer cases to the ICC has prompted politicisation of the ICC – the UN Security Council is, itself, limited by the political ambitions of its member states’ self-interests.

Actions taken by key members of the ICC in the lead up to the probe’s instigation have demonstrated the manner in which such politicisation can occur and has proven the adverse impact this has on the Court’s ability to act completely impartially and fairly. For example, whilst it is true that the ICC held meetings with members of the Israeli government, Bensouda’s opening statement that she has undertaken a “thorough, independent and objective assessment of all reliable information available to her Office” is inaccurate and arguably misleading: the Prosecutor based its factual and legal research almost exclusively on information provided by UN bodies, many of which are linked to organisations which reject the legitimacy of Israel within any borders whatsoever.[2]

It is also telling that, despite confirmation from both Bensouda and her deputies on separate occasions that the ICC is limited in resources,[3] capacity and cooperation (even admitting that, in some situations, an investigation will only be one-sided), the ICC has nevertheless decided to continuing its investigation. This suggests a targeted desire to prosecute Israeli members of government and civilians. There is little likelihood that the conduct of Palestinian Authorities will  receive equal investigatory time or effort. In fact, the majority of incidents to be examined by the ICC focus on Israel’s alleged actions, rather than on those of Hamas, a terrorist organization which holds the genocide of Israeli civilians to be its primary aim and which routinely risks the endangerment of the Palestinian population, apparently as part of a political strategy. The unequal focus on Israeli conduct, coupled with the total omission of acts taken by the PA, suggests clear political bias and is unlikely to be conducive towards genuine peace and justice, which is what the ICC is intended to aspire towards.

The inconsistency in ICC dealings with alleged perpetrators not only conflicts with widely recognised standards of the Rule of Law and Democracy, it also breaches the International Holocaust Remembrance Association’s definition of antisemitism which includes having double standards by requiring a behavior of Israel which is “not expected or demanded of any other democratic nation”.[4] Why, for example, has Bensouda launched a probe into Israel settlements, but not into those in Cyprus, Ukraine, Armenia or Georgia, despite being able to? The first complaint made by Cyprus against Turkish settlements was filed in July 2014[5] – 6 months before the Palestinians asked the ICC for intervention. Although the Court has previously stated that an investigation into the Situation in Cyprus will commence shortly, time will tell whether it puts its words into practice. Certainly, it does seem strange that, given the ICC’s problematic reputation and complex logistics, it has decided to impose itself into a political quagmire of the greatest complexity rather than focus its resources on other outstanding issues.

After all, it is no secret that the sluggish investigations into possible war crimes in Afghanistan, which have been on-going since 2003, have been hindered by political pressure from the US. In addition, the reluctance on the part of the UK, France, the US and others to hold notorious leaders, such as Sudan’s Bashir and Libya’s Gaddafi, to account, has highlighted how, under the pressure of the international community, the ICC will fail to confront what appear to be egregious acts of international criminal injustice.

Operating on a Shaky Legal and Factual Basis

Coherent, well-reasoned and consistent decision-making is widely-acknowledged to be a crucial foundation for a court’s legitimacy as a judicial institution. Regrettably, the ICC has effectively enshrined inconsistency in its own governing articles. Under Article 21(2), judges are empowered to apply differing interpretations of the law on a case-by-case basis. Moreover, the variable legal backgrounds and legal cultures from which ICC judges come further exaggerates the Court’s heightened levels of inconsistency. This approach undermines the legal legitimacy of its decisions and creates personalised and inconsistent decision making which in turn weakens the rule of law and undermines the ICC’s credibility.

The ICC’s recent decision regarding the ‘Situation in Palestine’ is a prime example of the Court’s arbitrary nature and its failure to adequately deal compellingly with complex legal issues. Fundamentally, under the Rome Statute, a State must delegate its criminal jurisdiction over its territory and nationals to the ICC for the Court to have any jurisdiction. The ICC’s reasoning with respect to its exercise of jurisdiction therefore hinges on the definition of state, which is widely-accepted under international law to mean “sovereign state”. Had the ICC been consistent in its application of a definition of the word ‘’State” it would have had to find that it does not have jurisdiction over the Palestinian territories – indeed, part of the Palestinian complaint surrounds its lack of Statehood.

Moreover, even if Bensouda were to misinterpret the Rome Statute so as to enable non-State parties to delegate its jurisdiction, Israeli-Palestinian agreements such as the Oslo Accords explicitly prevent Palestinians from having criminal jurisdiction over the territories in question and, thereby, bars their ability to legitimately delegate such jurisdiction. In declaring its jurisdiction, the ICC has effectively set a precedent for amending existing peace agreements according to its own preferences, rather than respecting the parameters originally agreed.

If the Palestinians have surrendered their own criminal jurisdiction, as Oslo clearly states, then for the ICC to have jurisdiction it would have fallen to Israel to delegate that jurisdiction to the ICC. However, Israel has not ratified the Rome Statute; is not an ICC member; and has certainly not called on the ICC Court to intervene. The ICC’s finding that it has jurisdiction is poorly argued, fails to grapple adequately with these issues, and is unconvincing. It jurisdiction finding – which its then President dissented sets a dangerous precedent for unrestrained interference by the Court. It also begs the question as to why it would go to such legal gymnastics to find that it had jurisdiction at all, raising again a concern that it is over-eager to follow some unspoken political agenda.

What might Israel’s engagement look like?

It seems unlikely that Israel will acknowledge the ICC as a court which is free from political influence and which adheres exclusively to the Rome Statute and other international laws – its decision with regards to jurisdiction and statehood are clear examples of the ICC’s inconsistent application of recognised laws. At the very least, Israel should seek full transparency from the Prosecutor before agreeing to any cooperation. For example, Israel may demand disclosure of ICC’s sources of funding and whether any such funds were specifically earmarked by donors to go towards the “Situation in Palestine”.[6]

Other ways in which Israel may have limited engagement with the proceedings include:

  • Seeking a deferral of proceedings. This could either by made under Article 18(2) Rome Statute on the basis that the alleged crimes have already been, or are currently being investigated. It could also appeal to the Security Council under Article 16 Rome Statute on the basis of a threat to peace pursuant to Chapter VII of UN Charter.
  • Submitting material which challenges the information and narratives relied upon by the ICC or material which exonerates Israel.
  • Submitting a complaint against the Palestinian Authorities, who have committed international crimes under the Rome Statute on a regular basis.

However, if the concern that the ICC is motivated by political agendas is correct, then interventions of this type will lend some legitimacy to the Court by engaging with it at all, whilst failing to affect the outcome of the ICC’s so called investigation.

Article written by: Trevor Asserson, Syvanne Aloni and Talia Lerman