The Palestinians have weaponized the International Criminal Court (ICC). Leveraging the decision of the United Nations General Assembly to bestow Palestine with the title “Non-Member Observer State,” the Palestinian leaders decided to join the ICC, which accepted its application with open arms. Then, on May 15, 2018, the Palestinians exercised their “right as a State Party to the Rome Statute to refer the Situation of Palestine for immediate investigation” of alleged Israeli crimes to the ICC prosecutor, who had previously opened an informal “preliminary examination” on her own initiative.
The Palestinians’ referral checked many of the boxes defining the crimes subject to ICC jurisdiction, particularly the alleged crimes against humanity and war crimes. On May 24, 2018, the ICC’s Presidency assigned the “Situation in Palestine” to the ICC’s Pre-Trial Chamber, which took steps to begin informing alleged “victims” as to the ICC’s role and activities, so they can “properly exercise their rights.”
The ICC’s chief prosecutor Fatou Bensouda’s office issued its “Report on Preliminary Examination Activities” for 2018 dated December 5, 2018, which included a section on the Palestinian situation. It appears that a decision is near on whether to open a formal investigation into Israeli actions in the West Bank and Gaza mentioned in the report, including demolition of Palestinian property, eviction of Palestinians from the West Bank and East Jerusalem, plans to evacuate residents of the Bedouin village Khan al-Ahmar, settlements construction, the 2014 Gaza war, and more recent violence in and around the Gaza Strip border with Israel stemming from Palestinian mass protests. Experts believe that the prosecutor will open such an investigation with the Pre-Trial Chamber’s blessing in the near future, especially in light of her recent expressions of concern over continuing casualties in the proximity of the Gaza border with Israel.
Israel’s Foreign Ministry stated its official position with respect to any ICC proceedings brought against it: “Israel is not a member of the International Criminal Court and our clear stance is that the court does not have authority to deal with the Israeli-Palestinian conflict, among other things because the Palestinian Authority is not a state.”
Israel is right that the Palestinian Authority is not a state in any meaningful sense. Given the Palestinian Authority’s split with Hamas which controls Gaza, the Palestinian Authority is a dysfunctional entity without full control under a unified government of the territory or population it claims comprises the “State of Palestine.” However, such an inconvenient fact is unlikely to stop the ICC from proceeding with a formal investigation and possible charges against Israeli political leaders, security police, and Israel Defense Force (IDF) military personnel. The problem is that many states – with the notable exception of the U.S. for now – will abide by the decisions of the ICC and enforce any arrest warrants against Israelis traveling outside of Israel that the ICC may choose to issue.
The Rome Statute that established the ICC lacks any specific definition of what constitutes a “state.” Nevertheless, there are functional factors that may be viewed as indicia of statehood that the ICC will almost certainly rely upon to entertain Palestine’s criminal referral of alleged Israeli actions to the ICC. These indicia include the UN General Assembly’s recognition of Palestine as an observer state; Palestine’s current chairmanship of the Group of 77 and China; the Palestinian Authority’s exercise of de facto governmental, security and administrative functions of significant parts of Palestinian territory; and the ICC’s acceptance of Palestine’s accession as a state party for the purposes of the Rome Statute treaty in the first place. The election of Palestinian Authority Attorney General Dr. Ahmad Barak to serve as a member of the “Advisory Committee on Nominations” of judges on the International Criminal Court serves as confirmation of ICC state parties’ acceptance of Palestine as an equal state party to the Rome Statute.
Moreover, as for the split of governance and control between Hamas and the Palestinian Authority over portions of Palestinian territory (Gaza vs. the West Bank), the Palestinians will argue that they came together in support of Palestine’s membership in the ICC and its criminal referral.
Even so, if the Palestinian referral proceeds to more formal stages as expected, Israel could assert objections on various grounds that do not have to rely on the lack of Palestinian statehood argument alone. Israel should also go on the offensive.
First, the Pre-Trial Chamber judges cited the Palestinians’ definition of the territorial boundaries of the “State of Palestine” as comprising “the Palestinian Territory occupied in 1967 by Israel, as defined by the 1949 Armistice Line, and includes the West Bank, including East Jerusalem, and the Gaza Strip.” The prosecutor’s 2018 report appeared to assume that this definition applies to the ICC’s proceedings, referring to “crimes allegedly committed by officials of the Israeli authorities in the West Bank, including East Jerusalem, which may fall under the purview of article 7 of the Statute on crimes against humanity.”
If the ICC formally accepts this definition of the “State of Palestine” for purposes of the geographical scope of its investigation and/or prosecution of charges against Israelis, it would be prejudging an issue over disputed boundaries that is still open for final negotiations between Israel and the Palestinians. The ICC does not have the legal authority to make judgments based exclusively on territorial parameters claimed only by one side to the controversy before it.
Second, the Palestinians should not be allowed to come before the ICC and plead for “justice” when their own hands are so unclean. Hamas’s call for Israel’s annihilation and its rocket launches from the Gaza territory that it controls against civilians in Israel, Hamas’s support of suicide bombings and murders of Israeli civilians by means of guns, knives and vehicles, and Palestinian leaders’ incitement to violence and rewarding of terrorists demonstrate their complete disdain for the most basic rule of law.
Third, as to the violence resulting from Palestinian protests in and around the Gaza border fence with Israel, Hamas, not Israel, has effective control of the Gaza side of the border fence and has been encouraging violence across the border with Israel rather than trying to contain it. Israel does not have its own security forces in place on the ground in Gaza to stop, as a law enforcement matter, the Hamas-instigated violence there and Hamas-instigated attempts by Palestinian militants to illegally cross into Israel en masse. Thus, the Israeli military has no choice but to deal with Hamas and other Palestinian terrorist groups as hostile forces in the context of an armed conflict. As opposed to the body of strict international human rights law governing law enforcement by an “occupying” force, where lethal force can only be used as the last resort in the face of imminent danger to human life, the body of international law governing the use of force in the context of an armed conflict, including with respect to civilians thrust into such a conflict situation, are more permissive.
Fourth, the ICC has already demonstrated bias in its appointment of the Palestinian Authority Attorney General to the “Advisory Committee on Nominations” of judges on the International Criminal Court while the Palestinians’ referral is still pending before the Court. Dr. Ahmad Barak will be able to use his position on the ICC committee to unfairly influence the selection of future judges who may be called upon to rule on the Palestinians’ case. Moreover, given the UN Human Rights Council’s incontrovertible bias against Israel, any reliance by the ICC prosecutor or judges on Israel-bashing reports by the Council or its so-called “fact-finding” groups, including the flawed findings released last month by the UN Commission of Inquiry on Gaza Violence, will inherently taint the ICC’s decisions
Fifth, and most importantly, under the ICC’s principle of complementarity the ICC must step aside in deference to Israel's independent judiciary. Complementarity involves the existence of national institutions fully capable and willing to handle in a genuine fashion the potential cases being considered for investigation by the ICC prosecutor’s office. Israel’s judicial system is robust, independent, and perfectly capable and willing to investigate and prosecute Israelis accused of the international crimes alleged by the Palestinians. Israel’s civilian High Court has thoroughly examined the Israeli Defense Force’s rules of engagement governing use of force in connection with the violent clashes in Gaza, for example. The Israeli High Court upheld their legality, with the caveat that the government must conduct independent investigations of individual cases of alleged infractions of the rules of engagement in practice. There is no credible evidence to indicate that Israel, the only functioning democracy in the region with an independent judiciary, cannot or will not undertake without delay such investigations at the national level in a fair and impartial manner as measured under reasonable objective criteria. The ICC has no basis, other than the word of Palestinians and their advocates at the UN and so-called human rights groups, to determine that the Palestinian charges must be “admissible” for the ICC to handle itself.
In the highly politicized context in which the ICC is being pressured to take charge of the Palestinians’ referral rather than dismiss it on any of the grounds described above, however, these defenses may not be enough. Israel will need to take the offensive, treating Palestine as the “state” it claims to be for the purpose of filing charges against its leaders and armed terrorists.
The offense strategy is already beginning to unfold. A group of Israeli farmers from the areas surrounding the Gaza Strip, for example, have lodged an official war crimes complaint with the ICC against Hamas leaders Khaled Mashal, Saleh Arouri, and Zaher Jabarin for promoting “fire kite” terror over Israeli lands.
The ICC prosecutor herself has indicated receptiveness to examining alleged Hamas war crimes. Testimonies of Israel Defense Forces’ combat soldiers are being submitted to the ICC in that connection.
In addition, charges that Hamas is violating the ICC crime of “aggression” should be brought against Hamas leaders and armed militants. Hamas’s repeated rocket launches from its territory into Israel fall within the Rome Statute’s definition of this crime, as well as of war crimes and crimes against humanity. The systematic pattern engaged in by Hamas and other Palestinian members of terrorist armed groups involving suicide bombings and murders of Israeli civilians via vehicles, knife attacks and gunfire also fit within the Rome Statute’s definition of aggression.
The time is drawing near when the Palestinians’ lawfare strategy against Israel is likely to fully bloom, with the help of the ICC. Israel will need to be prepared immediately both to defend itself and to move to offense.
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