Lawyers and Jewish civil society organisations around the world are fighting back against the attempt to misuse the International Criminal Court (ICC) by turning it into yet another international institution to bash the only Jewish State.
The ICC was created to ensure accountability for the most serious war crimes, crimes against humanity and genocide, when these crimes were not prosecuted by the States concerned. Whatever the rights and wrongs of the dispute between Israelis and Arabs, the scale of casualties is tiny compared with numerous other conflicts around the world; and Israel has a fully effective legal system in which no one is above the law.
But the Prosecutor of the ICC was persuaded that there was evidence of war crimes by Israelis in the conflict in Gaza in 2014 and in the “transfer” of Israelis into “occupied territory”; and by Palestinians in Gaza. And she also believed that the ICC had jurisdiction on the basis that these alleged crimes were committed on the territory of “the State of Palestine” whose deposit of its purported accession to the Rome Statute of the ICC was accepted by the Secretary General of the UN on the ground that the UN General Assembly had granted “Palestine” the status of “Non-Member Observer State” in its Resolution 67/19. So she was minded to proceed with a full investigation, in the course of which warrants might be issued for the arrest of Israelis and Palestinians who were alleged to have committed war crimes
On the other hand, the Prosecutor knew that the territorial jurisdiction of the ICC was disputed. The Israeli Attorney General Avichai Mandelblit issued a detailed memorandum showing that Palestine is not a State and under the Oslo Accords the Palestinian Authority does not have jurisdiction over Israelis that it could delegate to the ICC.
So the Prosecutor asked the Court to rule on whether it has territorial jurisdiction and the Court directed that any applications by States, NGOs and individuals to submit observations on this issue should be filed by 14 February. By the evening of 15 February, 35 submissions had been posted on the ICC’s website; it is possible that further applications were filed before deadline but have not yet been posted.
UK Lawyers for Israel (UKLFI) made a joint application together with the International Legal Forum, Bnai Brith UK, the Jerusalem Initiative and the Simon Wiesenthal Centre. Our application seeks leave to submit observations correcting distortions and omissions in the Prosecutor’s account of the history and present status of the territory in issue, demonstrating Israeli claims over this territory and the inconsistency of Palestinian claims, the dangers for the stability of States around the world if the Court accepts the Prosecutor’s argument that Palestine is a State on the basis that Palestinians have a right to self-determination, and the prejudice to Christians living in Jerusalem if the ICC decides that they live in a State of Palestine.
Another joint application supporting Israel’s position was made by our friends at The Lawfare Project, NGO Monitor, Palestinian Media Watch and the Jerusalem Center for Public Affairs. Further applications were made by the Touro Institute and the European Center for Law and Justice.
Other applications have been made by diplomats who participated in Oslo Process negotiations, Ambs. Dennis Ross and Todd Buchwald.
Most significantly six States – the Czech Republic, Germany, Austria, Hungary, Australia and Brazil – have filed applications indicating an intention to dispute jurisdiction. The Israeli Ministry of Foreign Affairs should be applauded for this diplomatic achievement. We will continue to urge the UK government to adopt a similar position, not least because the Prosecutor’s arguments pose very serious potential problems for the UK itself.
Applications to submit observations have also been made by NGOs and professor of international law in support of the Prosecutor. These include a joint application by PCHR, Al Haq, Al-Mezan and Aldameer and individual applications by Profs John Quigley, Richard Falk, William Schabas and Hatem Bazian. However, it does seem that they are outweighed in quality and weight by the applications supporting Israel’s position.
An important application by the ICC’s own Office of Public Counsel for the Defence seeks to argue that the Court has no power to make a ruling as to jurisdiction at this stage; it can only do so when a specific case is before the Court; and that even if the Court has power to rule on jurisdiction at this stage, it should not do so since this would prejudice potential defendants. If this view is upheld by the Court, it remains to be seen whether the Prosecutor (or her successor) will launch an investigation without a ruling on jurisdiction.
