Israel In The Cross Hairs Of The ICC

Israel in the Cross Hairs of the International Criminal Court

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.”

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.

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. 

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.