By Eli Bar-On
DEPUTY MILITARY ADVOCATE GENERAL, IDF (2012-2015)
In the chronicles of the Israeli-Palestinian conflict, February 5, 2021 will be remembered as the day in which the Pre-Trial Chamber of the International Criminal Court (ICC) in The Hague officially paved the way to the criminalization of the conflict between Israel and the Palestinians.
In order to understand the chain of events that led to the Chamber’s decision, let us take a few steps back.
On November 29, 2012, the UN General Assembly adopted Resolution 67/19 that accorded 'Palestine' Non-Member Observer State status.
Following this resolution, the UN Office of Legal Affairs dispatched a memorandum stating that 'Palestine' would now be able to become party to any treaties that are open to ‘any State’ or ‘all States’ deposited with the Secretary-General of the UN. Using this legal opinion, the Palestinians indeed acceded to several international treaties.
On January 2015, 'Palestine' acceded to the Rome Statute, which is the foundational document of the ICC. On April 1, 2015, 'Palestine' was officially welcomed as a State Party to the Statute. 'Palestine' informed the Court that it is delegating its jurisdiction to the ICC over crimes committed on its territory or by its nationals since June 13, 2014.
Interestingly, but not coincidentally, June 13, 2014 is the day after the kidnapping and murder of three Israeli teenagers by Hamas operatives in the West Bank, an event that put in motion an escalation that eventually led to the outbreak of the Gaza war in July 2014.
In January 2015, a few days after 'Palestine’s accession to the Statute, Fatou Bensouda, the Prosecutor of the ICC decided to launch a preliminary examination of the 'Situation in Palestine' since June 13, 2014.
Almost five years later, on December 2019, the Prosecutor concluded the examination and found what she claimed was reasonable basis to proceed with an investigation into the 'Situation in Palestine', based on the belief that both Israeli forces and Hamas members committed war crimes during the 2014 Gaza hostilities. In addition, she raised suspicions that Israeli officials committed war crimes of transferring Israeli civilians into the West Bank (i.e., the Israeli settlements); and lastly, that Israeli soldiers committed crimes using lethal and non-lethal means during the disturbances near the Gaza border with Israel that began in March 2018.
The Prosecutor then asked the Chamber to make a ruling over the scope of the territorial jurisdiction of the ICC in 'Palestine', and to acknowledge its jurisdiction over the entire territory of the West Bank, including East Jerusalem, and Gaza.
While Israel, which is not a member in the ICC, decided not to take part in the proceedings in the Chamber, Israel's Attorney General Avichai Mandelblit published a highly detailed memorandum regarding the Prosecutor's reference to Chamber. The Attorney General argued that the ICC does not have the jurisdiction to hold any proceedings that emanate from 'Palestine'’s referral of jurisdiction to the Court, since 'Palestine' is not and never was a State according to the binding criteria in international law.
Resolution 67/19 of the UN General Assembly, which served as the foundation for the Palestinian accession to the Rome Statute, was only meant to administer 'Palestine'’s representation within the UN. It is a declaratory document that represents a political aspiration for a future Palestinian State, and like all UN General Assembly resolutions, it is not legally binding. The UN Secretary General at the time made clear that his act of circulating the Palestinian accession document to the Statute does not have any ramifications regarding the question of Palestinian statehood.
Mandelblit further asserted that 'Palestine' does not have effective control over the West Bank and Gaza, a crucial precondition for becoming a State. The Palestinian claim that Israel is occupying these areas only acknowledges the Palestinian lack of sovereignty. The right of Palestinians to self-determination should not be conflated with any claim to statehood, the Attorney General stressed.
If the Palestinians don't have the State sovereignty, the Attorney General contended, they can also not delegate to the ICC any jurisdiction to prosecute. There's also no 'territory of' a State (a term used in the Statute) over which the Court can exercise such a jurisdiction. The term which is frequently used in international discourse, “the occupied Palestinian territory,” is strictly political and has no legal ramifications on the question of sovereign title.
Finally, the Attorney General indicated that the Oslo Accords between the Israelis and the Palestinians manifestly stipulate that the Palestinians have no criminal jurisdiction over Area C of the West Bank, Jerusalem, and Israeli nationals – and obviously cannot delegate to the Court a jurisdiction they do not have.
Following the Prosecutor's referral to the Chamber, the Chamber received dozens of amici curiae (friends of the court) legal opinions in support of both the Israeli and the Palestinian positions. Numerous renowned experts in international law and no less than seven countries (the Czech Republic, Austria, Australia, Hungary, Germany, Brazil, and Uganda) supported the Israeli position that the Court has no jurisdiction over the matter.
The Chamber's decision was not unanimous, but rather decided by Majority, with the Presiding Judge, Judge Kovács, writing a dissenting opinion.
The Majority opinion first reviewed the question whether 'Palestine' can be considered a 'State' for the purposes of recognizing ICC jurisdiction to prosecute crimes that were committed in its territory, and held that 'Palestine' indeed qualifies as such.
The Chamber ruled that the Statute refers to States that are Parties to the Statute and does not require a determination as to whether those 'States' fulfil the preconditions of statehood under general international law. The Majority's opinion indicates that 'Palestine' acceded to the Statute according to the customary procedure to do so and accepted the jurisdiction of the Court with respect to the crimes referred to in the Statute. Any dispute regarding their accession should have been negotiated and if not resolved, be referred to the Assembly of States Parties (only Canada rejected the Palestinian accession to the Court). 'Palestine' has been an active member in the Assembly of State Parties to the Court ever since its accession. The Chamber also contended that it would be ineffective to allow an entity to become a State Party to the Statute, but to limit the Statute’s inherent effects over it.
The bottom line is that the Chamber decided that, under these circumstances, it may not review or challenge the eligibility of 'Palestine' to accede to the Rome Statute.
The Chamber stresses that any territorial determination for the purpose of defining the Court's territorial jurisdiction for criminal purposes has no bearing on the scope of 'Palestine'’s territory. This jurisdiction is set for the sole purpose of establishing individual criminal responsibility under the Rome Statute. The Chamber underlines that it cannot decide whether an entity is a 'State' according to general international law.
After concluding that 'Palestine' is a State for the purpose of the discussion, the Majority opinion discusses the delimitation of its territory over which the ICC can exercise jurisdiction.
The Chamber notes that in Resolution 67/19, the UN General Assembly 'reaffirmed the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967.’
The Majority's opinion mentions that according to the Rome Statute, the application and interpretation of the law by the Court must be consistent with internationally recognized human rights, including the right to self-determination.
Hence, the Chamber concluded that the Court’s territorial jurisdiction in the 'Situation in Palestine' extends to the territories occupied by Israel since 1967, namely the West Bank, including East Jerusalem, and Gaza.
In this regard, the Chamber stresses that it is neither making a decision on a border dispute under international law nor prejudging the question of any future borders.
The Chamber then proceeds to discuss the argument that the Palestinians could not delegate criminal jurisdiction to the ICC over Israeli nationals, Area C, or Jerusalem, since they do not have such a jurisdiction according to the Oslo Accords.
The Chamber asserts that this argument is not relevant to the scope of the Court’s territorial jurisdiction in 'Palestine'. The Rome Statute has specific arrangements to deal with any obligations of a State Party under international law that conflict with its obligations under the Statute.
Finally, the Chamber emphasizes that its conclusions relate only to the initiation of the investigation by the Prosecutor, and any interested party, including a State or a suspect, will be able to challenge issues of jurisdiction again in the future.
Yet Judge Kovács, in his dissenting opinion, says that the formal accession of 'Palestine' to the Court, and resolution 67/19 of the General Assembly, should not be read separately from other international law instruments that referred to the Oslo Accords, and that promoted peace initiatives between Israel and the Palestinians.
These include the Road Map of the Quartet, as well as many resolutions of the UN General Assembly, the Security Council, and other UN organs. The resolutions of the General Assembly are non-binding in nature, even if adopted by Majority voting. There are no binding international law instruments regarding Palestinian statehood.
The Prosecutor's request and the Majority opinion referred to non-binding documents but failed to mention that these documents also stress the necessity of establishing borders by way of internationally promoted negotiations. It is obviously premature, in Judge Kovács' opinion, to speak of a fully-fledged 'Palestinian State' and of its territory. It would be more appropriate to refer to 'Palestine' as a nascent State, recognized by some countries, whose borders still need to be negotiated, and the Oslo Accords still play a role in determining its authorities.
As to the scope of the territory in which the Prosecutor may exercise her investigative authorities, Judge Kovács contends that this should be based on the same circumstances that would allow 'Palestine', as a State Party, to assert jurisdiction over such crimes under its legal system, i.e., according to its own criminal jurisdiction in the Oslo Accords.
This means that when the Prosecutor concludes that continuing an investigation may trespass the limits of 'Palestine'’s competences in this complex criminal law regime, she should request Israel's consent.
There are many problematic issues with the Majority's opinion and they are mostly covered in Judge Kovács' opinion.
The question of whether and how an entity becomes an internationally recognized State in international law is complex and intricate. The Majority's analysis on this issue is almost technical, relying on the process of accession to the Court as the sole criterion in deciding whether 'Palestine' can be a State that can refer its jurisdiction to the ICC.
The UN Secretary General as a depositary of the Statute made it clear that he served a technical role by circulating the Palestinian accession document, and that this should not be understood as having any legal ramifications on Palestinian statehood.
He relied on a legal memorandum that referred to an option possessed by the Palestinians to accede to international treaties, emanating from the status that Resolution 67/19 accorded to them.
But there was nothing in Resolution 67/19 or the legal memorandum that leads to recognition of 'Palestine' meeting the legal standards of becoming a State according to general international law.
Nor is there a precedent in international law for the creation of a State on a territory under occupation. As Judge Kovács rightfully claims, the Majority's decision practically outsourced the judicial discretion to the UN, using Resolution 67/19 and the legal memorandum (which was meant to be an internal memo) as fait accompli acts.
The Majority did so without delving into the whole process that led to the UN Resolution and the dilemmas that surrounded it – which Judge Kovács did. He summarized his research as follows: "What can be deduced with absolute certainty from the text and the history of the adoption of Resolution 67/19 is that the great Majority of States represented at the General Assembly wanted to upgrade Palestine’s formal status in the UN and show political support for its endeavors by giving a political impetus, while waiting for the outcome of the initiated procedure of admission as a full member.”
And so, an array of 'technical' acts creates a situation in which 'Palestine' enjoys a status that should be reserved to sovereign States, without meeting the required standards for this to happen. This outcome does not comport with the most basic foundation on which the ICC was established, that only sovereign States that are recognized as such in international law can delegate sovereign jurisdiction to the ICC.
Another problem lies with the Majority's decision to recognize the entirety of 'the Occupied Palestinian Territories' as the territory over which the Court can exercise its jurisdiction. In doing so, the Majority relies on the right of the Palestinians to self-determination as a human right that the Court needs to apply in its rulings. It is not entirely clear why the Majority decided to use international law sources that are external to the Statute in this respect, but refused to do so while determining the first issue of 'Palestine' being a State Party to the Statute. Anyway, it is hard to understand the Majority's decision to treat the demarcation of the territory issue, one of the most controversial and sensitive issues throughout the negotiations between Israel and the Palestinians, in such a simplistic manner. As Judge Kovács' said, "to accept as determinative a unilateral statement concerning the exact demarcation of a territory that is known to be the object of a very slowly progressing and frequently suspended series of negotiations, would have required at least an explanation".
The Majority's decision to simply ignore the argument regarding the Oslo Accords and their implication on the limited jurisdiction that the Palestinians can delegate to the Court is a big flaw in its decision.
It remains unclear what the current status of the Oslo Accords is in the Majority's opinion. The Accords stood – and still stand – at the heart of the relationship between Israel and the Palestinian Authority. The Majority regard the argument concerning the Accords as a technical issue that might interfere with future attempts of the Prosecutor to get assistance in her investigation from the Palestinians, due to conflicting obligations they will have between the Rome Statute and the Oslo Accords.
But the core of this argument deals with the very essence of the competence to refer the jurisdiction to the Court in the first place. Judge Kovács' analysis, again, makes more legal sense and offers a way for the Prosecutor to investigate while accommodating both the Statute and the Oslo Accords.
It should also be said that the Majority's clarification, according to which any interested party will be able to challenge issues of jurisdiction again in the future, emasculates the Prosecutor's intention of taking such issues off the table in advance.
The ramifications of the decision for Israel
It is easy to understand why Israel, as the national homeland of the Jewish People, with the horrendous atrocities that befell it in World War II, was one of the main proponents of the establishment of the ICC. Unfortunately, political manipulations that dragged the Statute of the ICC away from its intended course made Israel decide not to become a State Party in the Court. Israel's concern that the Court will be weaponized for political purposes is now materializing, with the Chamber's decision to allow the Prosecutor to investigate Israel without its consent.
The Court, established as a court of last resort to prosecute the most heinous atrocities, was never meant to target democracies such as Israel. It is worrisome that Israel, as a democracy with a heritage of respect for international law, and Hamas as a terror organization that defies international law, are being assessed by the Prosecutor on an equal footing.
The Chamber's decision should not be taken lightly or disregarded by the Israeli government. Although the Chamber repeatedly emphasizes that its decision has no legal ramifications on the legal claims regarding the Palestinian statehood, there is no doubt that this decision will be cited as another landmark in the Palestinian entity’s evolution towards becoming a State.
The decision is also clearly a very concerning milestone in the ongoing campaign to delegitimize Israel. While there is still a long way to go before any indictments against Israeli officials will be submitted to the Court, the gate is now open for the Prosecutor to start her investigation against those officials and even issue warrants for their arrest.
Such warrants can be issued secretly and every State that is a member of the Court is obliged to enforce them. It is easy to imagine the drama that will shroud a surprising arrest of a senior Israeli official somewhere around the globe. Such a reality will significantly restrict the movements of many Israeli officials (it should be noted that the investigations will probably focus on political leaders and senior military officers and not on low-ranking soldiers or government officials).
The Prosecutor of the court will end her tenure in June this year. Her replacement has not been named yet. Her successor will have an independent agenda regarding the issue, for better or for worse, regarding Israel.
When considering the priorities of the Office of the Prosecutor and the way to move forward, Judge Kovács' concluding remark will surely be taken into consideration: "I am convinced that without the cooperation of the directly interested States in the present and truly complicated, over-politicized situation, the Prosecutor will have no real chance of preparing a trial-ready case or cases. This should go hand in hand with national prosecutions when needed and according to the rule on complementarity".
In this respect of complementarity (meaning, the priority that States have over the ICC to investigate and prosecute crimes committed by their nationals or in their territories), we should bear in mind that Israel has a robust system to examine and investigate violations of the Laws of Armed Conflict – a fact that was confirmed by the detailed report of Israel’s Turkel Commission that was set up to investigate the Israeli raid on the Turkish Gaza flotilla, and which reviewed Israel's investigative mechanisms.
The Prosecutor recently decided not to launch an investigation against British military personnel for alleged crimes committed in the war in Iraq. The Prosecutor satisfied herself with the existence and operation of UK's investigative mechanisms, although the British investigations did not end in criminal prosecutions. Given the robustness of Israel's mechanisms, the British example is undoubtedly a reassuring sign as far as the Prosecutor's investigation concerns the military operations of the IDF.
On the other hand, the Prosecutor's decision to investigate Israel's settlement activities in the West Bank and East Jerusalem should be a major concern for Israel. Israel never considered its settlement to be illegal, and both left-wing and right-wing governments throughout the years have invested in the promotion of this project.
Israel's Supreme Court has been scrutinizing thousands of cases regarding the settlements, dealing with complex legal issues of international, administrative and constitutional law ever since Israel seized the West Bank in 1967. But Israel has never criminally prosecuted any acts relating to the settlements because it fundamentally rejects the idea that these are illegal under international law. Thus, Israel will not be able to claim that complementarity considerations should label the settlement cases inadmissible at the Court, and it now faces a fierce legal battle in this arena. The Chamber's reference to UN Security Council Resolution 2334 that condemns the Israeli settlement activity is an ominous sign in this respect.
What should Israel do now?
Israel should launch multiple, simultaneous efforts in the diplomatic and legal spheres.
Diplomatically, Israel should remember that it is not alone in this battle. During the proceedings before the Chamber, it has gained the support of seven important States that supported its legal views before the Chamber.
After the Chamber's decision was published, the U.S. State Department and the Foreign Ministers of both Canada and Australia rejected it.
Israel should work closely with the Biden administration and coordinate responses to the Chamber's decision. The ongoing investigation against the activities of U.S. forces in Afghanistan makes Israeli and American interests (and indeed, those of all other Western democracies) in this respect very similar.
Israel should also launch an organized public diplomacy effort to engage in a dialogue with diverse influential audiences around the world and present to them its articulate legal positions.
Israeli officials should refrain from attacking the Court and its officials. Such attacks are not constructive in any way and can only antagonize Israel's friends in the world. This would be especially counter-productive at this sensitive time, in which the process of the nomination of the next Prosecutor is still ongoing.
Israel should also strive to find a way out from the current stagnation in the negotiations with the Palestinians. This stagnation has undoubtedly played a role in the motivation of the Office of the Prosecutor to push the investigation forward. It is not unreasonable to contend that ongoing negotiations can serve as a justification to stall the investigation because it will not serve the interests of justice, a legitimate consideration that can be taken into account by the Prosecutor.
Israel can also use the assistance of its new Arab friends in the region in pushing the negotiations with Palestinians forward.
Legally, Israel has to keep cultivating its own examination and investigation mechanisms and make sure they continue to enjoy their independence.
Israel should also devise plans to tackle the most challenging legal issues that might arise during the investigation, including the legal status of the settlements and the legal status of the crime that refers to them in the Statute; the legal status of the Gaza Strip after Israel withdrew from it; the legal definition of Israel's conflict with Hamas as international or non-international, and other key issues.
Lastly, Israel should also consider what kind of cooperation, if any, it wants to have with the ICC. While Israel’s reluctance to openly cooperate with the Court under such circumstances is clear, there are many more nuanced and discrete ways to engage with the Court – and some of them may carry valuable advantages.
In any case, this is no time to panic or rage. It is time to roll up sleeves and prepare for a long uphill battle. Israel is morally right. And as such it will eventually win this battle, like many before it.
Eli Bar-On concluded his career in the Israel Defense Forces holding the position of instructor at the IDF National Defense College (the INDC). Prior to that position, Bar-on served as the Deputy Military Advocate General of the IDF (2012 to 2015), where he was in command of approximately 1,000 lawyers and legal experts, including prior to, during and following Operation Pillar of Defense & Operation Protective Edge. He also served as the Chief Legal Advisor for the IDF in the West Bank from 2009 to 2012.