Israelis should learn the rules of the ICC

Constructing Ariel, deep into the West Bank. Israel is more vulnerable to charges of illegal building and land seizure – which it has never forensically investigated – than war crimes. Photo, Getty images.

Analysis / ICC inquiry is a game changer for Israel

The International Criminal Court will consider four issues in examining whether Israel has a case to answer for its actions in the Palestinian territories.

By Aeyal Gross, Haaretz
January 19, 2015

“The same court that after more than 200,000 deaths in Syria didn’t see a reason to intervene there, in Libya, or in other places, finds it necessary to ‘examine’ the most moral army in the world.” That was the response of Foreign Minister Avigdor Lieberman to last Friday’s announcement by the Prosecutor of the International Criminal Court, Fatou Bensouda, that they would be opening a preliminary examination of the situation in Palestine.

Given that the ICC in 2011 issued arrest warrants for Saif al-Islam Gadhafi, the son of the deposed Libyan leader, and Libyan intelligence chief Abdullah Senussi, Lieberman is either exhibiting woeful ignorance or not telling the truth.

With regard to Syria, it would behoove the foreign minister to learn the rules of the ICC’s jurisdiction, which can stem from one of three instances: A country where crimes were allegedly committed joins the court or consents to jurisdiction; a country whose citizens allegedly committed the crimes joins the court or agrees to a judgment; or a case is referred by the United Nations Security Council.

While the Security Council referred the case of Libya to the ICC, it did not do so in Syria’s case, which is why the court has no jurisdiction to intervene.

In the Israeli-Palestinian case, jurisdiction stems from the consent to judgment by a state in which the crimes were allegedly committed – Palestine. (While Israel doesn’t recognize it, a state by that name is recognized by international institutions.)

The decision on Palestine’s status by Bensouda is significantly different than that of her predecessor in April 2012. The previous prosecutor, Luis Moreno-Ocampo, thought there were doubts as to whether Palestine was a state, and noted, inter alia, the importance of the United Nations’ position on this point.

Recognition of Palestinian state

From the moment in November 2012 that the UN General Assembly recognized Palestine as a non-member state (its previous status was non-state observer), it was clear that the current prosecutor would have difficulty not accepting Palestine as a state, and it is now recognized as the 123rd state to join the court.

The UN secretary-general, the president of the ICC Assembly of States Parties and the court registrar have all recognized the Palestinian affiliation, and so did the prosecutor. Now the gap between the Israeli and international stance is becoming eminently clear.

President Abbas speaks at the Jordan special meeting of the World Economic Forum, 2013.

Palestine cannot be accepted as a UN member state because that requires the recommendation of the Security Council – which the United States would veto. But there’s no such veto in the General Assembly, and the ICC is not a UN body; nor is it subordinate to the Security Council. The General Assembly and the ICC have proven to be effective mechanisms to bypass the hegemony, fortified by their veto, the Americans have in the Security Council. According to the ICC constitution, however, the Security Council may ask that the court not deal with a specific issue for 12 months, and to renew such a request.

It should be noted that the ICC prosecutor is in the midst of conducting preliminary examinations against numerous countries. These include claims of torture by British security forces in Iraq and by U.S. security forces in Afghanistan. There is an examination of Russia over alleged crimes committed in Georgia. One can, of course, doubt whether the prosecutor will ultimately want to start up with those countries, but it’s clear that at this stage, Israel is hardly exceptional.

What will Bensouda consider during her inquiry? First would be whether the court indeed has jurisdiction, which seems to be the case since Palestine is a recognized state that has consented to a judgment.

Genuine investigation

The second would be the principle of complementarity, which means the court will not deal with the matter if a relevant state is conducting a genuine investigation of the issue. In this context, assessing the objectivity of the investigations Israel is conducting into the harm done to Gazan civilians during Operation Protective Edge last summer will be critical: Only an independent investigation – not one being done to shield Israelis from prosecution in The Hague – will be considered genuine.

Also, while the complementarity issue is relevant to investigating Protective Edge, it isn’t relevant to another alleged crime the prosecutor may examine: that of transfer of part of the civilian population into occupied territory. Since the settlements are government policy, it’s clear that complementarity won’t apply there.

The third consideration is the gravity of the events. This is why the ICC prosecutor closed the investigation into the killing of civilians on the Gaza-bound aid flotilla in 2010, a case that reached the ICC because the Mavi Marmara ship, where the 10 deaths occurred, was registered in the Comoro Islands, which referred the case to the court.

The picture is different, of course, with regard to Palestine, which will bring much broader issues to the court’s attention.

The fourth and final issue is whether considerations of justice justify continuing the investigation. This allows the prosecutor to take into account the positions of the victims, international organizations, and more – although the prosecutor’s office has clarified in the past that only in extraordinary circumstances would considerations of justice lead to the closing of a case.

In any event, examining all four considerations is likely to take a long time.

If, after examining all these considerations, the prosecutor thinks there are grounds to move forward, she will then have to examine whether there is a reasonable basis for concluding that crimes were committed. If there is such a basis, the real investigation will begin.

Such an investigation might be conducted both against Israelis – regarding civilian casualties in Gaza and in connection to the settlements – but also against Palestinians responsible for attacks on Israeli civilians.

Even if charges are filed against Israelis, they could not actually be tried unless they were extradited to the court, the chances of which are extremely small.

However, there is no doubt that the rules of the game have changed. Israelis and Palestinians alike are coming, for the first time, under the jurisdiction of an international criminal tribunal. If the foreign minister is surprised, it’s probably because he hasn’t yet internalized that Israel’s legal stance regarding a variety of issues is very far from the internationally accepted positions.

Election fever may be driving Israel’s premature ICC fury

Jerusalem’s anger at court’s preliminary probe, which still needs to clear a number of hurdles, likely has more to do with political posturing than genuine fear of criminal prosecution

By Raphael Ahren, Times of Israel
January 20, 2015

Based on Israel’s response to the International Criminal Court’s decision Friday to open a preliminary examination into “the situation in Palestine,” one might think the Jewish state had already been indicted, tried and convicted. But the truth is that the jury on the whole matter is still out, and there is a good chance that it may never come to an actual suit against Israeli leaders.

The ICC’s step is the “height of hypocrisy and the opposite of justice,” Prime Minister Benjamin Netanyahu fumed over the weekend, calling it “truly tragic” and “absurd.” He quickly sent letters to Berlin, London, Canberra and Ottawa and beyond, trying to get world leaders to oppose the court’s decision and force it, somehow, to renounce it.

Foreign Minister Avigdor Liberman said the “disgraceful” move is meant to harm Israel’s ability to defend itself against terrorism and vowed to take steps to “disband this court, which represents hypocrisy and encourages terrorism.”

It is indeed ludicrous for Hamas and other Palestinians groups not known for their military ethics to charge Israel with war crimes and crimes against humanity. But the ferociousness of the responses from Jerusalem might have more to do with the March 17 elections, and the opportunity to be seen as an uncompromising defender of the troops, than with a cold analysis of the various scenarios that are likely to unfold at the ICC in the coming months and years.

There is no consensus among the experts about how the process might play out. There is, however, a certain sense that Israel might be more vulnerable over the issue of settlements than over the summer’s Operation Protective Edge conflict with Hamas. No Israeli court is investigating alleged settlement illegalities; but the Israeli legal system is checking into alleged illegalities in Gaza — a central defense against intervention by the ICC. And yet, some legal analysts say the court would be hard-pressed, too, to incriminate Israel over settlements.

The prosecutor’s motivation

It is too early to say whether the ICC’s prosecutor, Fatou Bensouda, is motivated by antipathy toward the Jewish state or whether she is acting in good faith. The fact that she rushed to announce the launch of the preliminary examination even before Palestine officially becomes a member of the court on April 1 leads some observers to fear that Bensouda, indeed, has something against Israel. She could have opted to first consult with other states and organizations over the controversial question of Palestinian statehood but chose not to, they point out.

Furthermore, Bensouda has made statements — such as this article in the Guardian [The Truth about the ICC and Gaza]— that can be interpreted as an open invitation to Palestine to apply for membership.

ICC prosecutor Fatou Bensouda

What Bensouda has done to date is determine that Palestine is enough of a state to join the court, and take the largely technical step of opening a preliminary examination to look into the Palestinians’ complaints. But that is still a long and complicated way from the launch of a criminal investigation against Israeli officials, and the process could easily take months or years.

Case in point: In 2007, the ICC launched a preliminary examination into alleged American crimes in Afghanistan. Eight years on, the ICC says it continues to “maintain contact” with relevant officials and organizations, “and expects to reach a determination on subject-matter issues in the near future.”

And if Bensouda really wants to open legal proceedings against Israeli officials for alleged crimes committed during the last Gaza war or for settlement construction? According to several experts, it is doubtful that she would be able to do so, let alone to hand down convictions.

Why did the ICC rush to open the examination?

Bensouda had long hinted that she would accept Palestine as eligible for ICC membership as soon as the United Nations General Assembly upgraded the Palestinian entity to a nonmember state, which happened in November 2012.

Many in Jerusalem reject this argumentation, lamenting that she is relying on a vote in a political body to issue a legal ruling regarding Palestine’s statehood. For the prosecutor to take the judgment of the UN General Assembly and apply it on legal terms of the Rome Statute — which regulates the ICC — “is to surrender her independence,” international law professor Eugene Kontorovich, who has been critical of unilateral Palestinian moves, wrote in a blog for The Washington Post.

On the other hand, Bensouda’s view was well known and therefore it was not too surprising that she launched a preliminary examination soon after the Palestinians, on December 31, filed a so-called 12(3) declaration and recognized the court’s jurisdiction over the West Bank and East Jerusalem since June 13, 2014.

Given her interpretation of the Rome Statute and her understanding of what constitutes statehood for the purposes of joining the ICC, her step was predictable and can be seen as merely technical.

The interesting question is what will happen next. In a press release on Friday, Bensouda vowed to conduct her analysis of the situation in Palestine “in full independence and impartiality.” Evidently, not everyone buys into this. But it is by no means obvious that she’s thirsting to see Israelis in the dock.

Among Israeli analysts, two scenarios are currently being discussed. Some believe that Bensouda is indeed, as Netanyahu suggested, out to get Israeli leaders. In recent years, the ICC has been criticized for focusing on war-crime cases in Africa, and some fear that Bensouda could see the Israeli-Palestinian conflict as presenting the perfect opportunity to show that the court can also work on a different continent. The enthusiasm with which she accepted Palestine into the ICC also has some officials in Jerusalem worried that she is eager to incriminate Israelis.

“The fact that this is being pushed through so quickly indicates that there was pressure on her, or maybe it shows her own personal desire to push this through as quickly as possible,” said Alan Baker, a former legal adviser to Israel’s Foreign Ministry and currently the director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs. “But that doesn’t mean that tomorrow morning, Israeli politicians and military officers are going to find themselves in the dock, as the Palestinians are claiming.”

Yet there is reason to believe that Bensouda will try to avoid getting sucked into a complicated battle fraught with diplomatic and political pitfalls, which is likely to earn the court much criticism regardless of how it will proceed.

Because it finds itself under constant attack over its inefficiency — in the court’s entire history, only two people have been convicted — the last thing the ICC wants is to be labeled as a political body, said Baker, who participated in the drafting of the Rome Statute. “That is why she’s stressing that she will act independently and impartially.”

Obstacles to an indictment: ‘Complementarity’ and ‘gravity’

Regardless of the prosecutor’s personal leanings, following the preliminary examination with a full-fledged criminal investigation will not be easy. According to the rules of the court, laid down in the Rome Statue, there is only “reasonable basis to proceed” if several criteria are fulfilled.

First, the ICC has to establish that it indeed has territorial and personal jurisdiction over what happened in Palestine. Analysts’ stances on this point align neatly with their political positions: those on the left say the court can easily determine that it indeed has jurisdiction over Palestine; experts leaning to the right have their doubts, wondering how the prosecutor will determine who’s a Palestinian citizen and where the state’s borders are, etc.

Next, the ICC will have to check whether the people under suspicion of crimes have not already been investigated by their country’s own legal system (the so-called complementarity requirement); and whether the alleged crimes are severe enough to occupy a court meant to look into “unimaginable atrocities that deeply shock the conscience of humanity” (the gravity requirement).

According to Baker, this means that Israeli leaders and generals have nothing to be afraid of. “It’s a big bluff, a huge PR exercise” launched by Palestinians to give Israel some bad press, he opined.

Indeed, it would seem difficult to prosecute Israeli leaders over Operation Protective Edge, since the Israel Defense Forces has launched investigations into several instances in which soldiers appeared to have acted inappropriately.

The court could take up Israel’s building of settlements in the West Bank. The Rome Statue, in article 8 (2)b(viii), explicitly defines a war crime as the “transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.” This phrasing was inserted at the behest of Egypt and Syria and is clearly intended to criminalize Israeli settlements.

No Israeli court is investigating the settlements, which means that the criterion of complementarity is not fulfilled. On the other hand, does the building of housing units in East Jerusalem or Ariel fulfill the court’s gravity requirement? Surely the world has seen worse atrocities. The ICC has so far not looked into similar cases of population transfer into occupied territory, such as Turkish settlements in Northern Cyprus, which could indicate that the court does not deem such activity deserving of its attention.

The additional protocols to the Geneva Convention deems settlement construction a war crime, and the Rome Statute considers it “serious violation of the laws and customs applicable in international armed conflict.” But Israel is not a signatory to either treaty and therefore legal experts wonder if the ICC can investigate Israelis for something that according to an Israeli reading of the law is not considered a war crime.

Israel’s anger at the very possibility of having to see its leaders in the dock for war crimes is understandable. Yet currently it is impossible to predict how the ICC’s preliminary examination is going to play out.

“Whatever decision the prosecutor takes, it will attract much attention, and either way she will make someone angry,” said Aeyal Gross, a professor of international law at Tel Aviv University. If she ultimately indicts Israeli leaders, she will antagonize not only Jerusalem but also the United States, Canada and some other Western countries, and risk some of the ICC’s funding. If she lets Israel off the hook, she will be attacked by the Arab world and those believing she bowed to political pressure from the pro-Israel lobby, Gross noted.

Several observers actually posit that Bensouda rushed into opening the case so she can then forget about it for a while. A preliminary examination can go on for years — a temporal refuge in which she doesn’t have to make any decisions at all.

“She will probably take a long time,” Gross assessed, “and hope for some genie to come out of the bottle and take this issue off the table.”