By Alexander Knoops

The central question for Israel 

On the 20th of December 2019, chief prosecutor of the International Criminal Court (ICC) in The Hague, Ms. Fatou Bensouda, announced that a criminal investigation into the “situation in Palestine” should be opened. Bensouda acknowledged that on the basis of an “independent and objective assessment of all reliable information available,” the criteria for opening the aforementioned criminal investigation had been fulfilled. The prosecutor deemed there to be “reasonable basis” for the initiation of an investigation into the allegation that war crimes have been committed (and continue to be committed) in Gaza and the West Bank, including East Jerusalem. According to Bensouda, this investigation will “serve the interests of justice.”

Yet due to the “unique and highly contested legal and factual issues” that are inherently connected to this case, such as the territory within which the investigation has to be conducted, Bensouda has requested the three judges of the court’s Pre-Trial Chamber to first determine the “scope of the territorial  jurisdiction” of the ICC. Specifically, it must be clarified whether the ICC’s jurisdiction covers Gaza and the West Bank, including East Jerusalem. The chief prosecutor has deemed this to be a fundamental question that needs to be resolved as quickly as possible, meaning before her official investigation is to begin. According to her press statement on the 20th of December 2019, it is furthermore of importance that “relevant States” have the ability to participate within this legal discussion, thus inviting Israel to The Hague.

The question at the forefront of this discussion is therefore: will the ICC find that it has jurisdiction in this area? In addition, should Israel defend itself before the court? On the one hand, challenging the court’s jurisdiction could be part of an effective defence. Yet on the other hand,  an Israeli defence before the ICC could acknowledge the very same jurisdiction that is currently to be determined by the Pre-Trial Chamber. What complicates a formal investigation in this regard is the fact that Israel is not party to the 1998 Rome Statute that created the ICC. In order to answer these questions, this article aims to examine the ICC’s scope of jurisdiction. The complexity of the first question will indicate that the issue of jurisdiction is intrinsically connected to the second question of an effective defence. 

What about the ICC’s “jurisdiction”? 

The creation of the ICC dates back to 1998, when the Rome Statute was signed by 120 states. The court is thus not an organ of the United Nations (UN). In light of the crimes committed during the Second World War, the belief that an international court ought to be established in order to prosecute those individuals most responsible for genocide, crimes against humanity and war crimes created the foundation for the ICC.

Israel was one of seven states, along with the US and China, to vote against the 1998 Rome Statute. It later signed the treaty but withdrew its signature in 2002. This directly implies that Israel does not recognise the ICC’s jurisdiction and that Israel’s standpoints are not tied to ICC decisions. Israel furthermore has no obligation to cooperate with the court or to appear before the court to offer testimony or defend itself. Yet this is part of just one side of the story.

The ICC’s jurisdiction can be invoked by a party state of the Rome Statute, once international crimes have allegedly occurred on its territory or if a party state’s nationals have perpetrated such crimes. Is the Palestinian National Authority (PA) such a state? In 2015, the PA requested the ICC to initiate an investigation into Israel’s military operations during the 2014 Israel-Gaza conflict, also known as Operation Protective Edge, as well as into the construction of settlements in the so-called occupied Palestinian territories. Here arises the first issue with a potential Israeli defense before the ICC. In 2015 the PA was able to become a ratifying state party to the ICC, due to obtaining non-member observer state status at the UN in 2012. Following the PA’s admission to the ICC, it was able to refer the situation in Gaza and the West Bank to the court. This referral pertains to the previously mentioned alleged international crimes committed in Gaza and the West Bank dating back to June 2014. The PA’s contested status as a state did not impede its introduction to the ICC; admission to the court as member state is much more an administrative decision, not one based on a court judgement. 

According to international law, a state’s existence is based on four main conditions: having an own population and territory, having a government that exercises effective authority over its population, and having an independent status. The second and third conditions are legally debatable. Prior to 1967 the West Bank was not a territory that legally belonged to the PA. As stated in the Oslo Accords, Israel continues to possess military and governmental control in the majority of the areas that the PA consider Palestinian territory, whilst the permanent status of these areas remains to be resolved. It is furthermore contentious whether we can speak of effective governmental authority in the West Bank and Gaza. It can also be argued that the fact that in 2012 138 UN member states voted for allowing the PA to have non-member observer state status was predominantly based on political considerations, not on legal considerations. An international legal judgement on the status of the PA as a “state” on whose “territory” allegedly international crimes have been committed is absent. It is not unlikely that exactly this argument will contribute to the Pre-Trial Chamber’s judgement on the scope of the ICC’s jurisdiction in the area.

Legal consequences of the ICC’s jurisdiction 

When considering the possibility that if these arguments are not effectively presented, or are not presented at all, during ICC proceedings on jurisdiction, what would the legal and political consequences be?  One should realize that if the court were to acknowledge its jurisdiction without any defense, and as such the prosecutor is enabled to start an investigation, this would open the door to lengthy criminal proceedings into potential crimes committed by both Israel and Hamas. This could ultimately result in the identification of suspects against whom the prosecutor – depending on the court’s approval – could issue arrest warrants. Israel, as non-party state would not be obliged to follow the ICC’s decision. Nevertheless, issuing arrest warrants against Israeli political and military leaders – provided that the court’s investigation marks these people as suspects – would imply that these individuals would not be able to freely move around the globe. In this case, the ICC’s 123 member states would be legally bound to implement the court’s order. 

If the ICC therefore acknowledges its jurisdiction, procedures will be put into place that may not be reversible. What this adds up to is that Israel should take action and provide a legal defense if it challenges the court’s jurisdiction. 

Legal-political consequences of the ICC’s jurisdiction 

As such, an initial answer has been given to this article’s central question of whether Israel should appear before the ICC to defend itself. By appearing before the court, Israel would not be recognizing the court’s jurisdictional powers within the territories at hand. Perhaps more significant is the fact that profound legal-political consequences may be avoided. In 2004 the UN General Assembly requested the International Court of Justice (ICJ) to issue an advisory opinion on the legal ramifications of the construction of the Israeli West Bank Barrier that was partially located in “disputed area”. According to Israel, the purpose of the fence was to prevent terrorist attacks in Israel. In July 2004, the ICJ ruled, in a non-binding advisory  opinion, that the construction of this separation fence was in conflict with international law. Throughout the case’s duration, Israel never appeared before the ICJ to defend itself against the charge. The legal-political consequences of Israel’s decision and the court’s opinion (that came into being without factual rebuttal) remain visible sixteen years later.

On the 12th of November 2019, the European Court of Justice (ECJ) ruled that products originating from “territories occupied by the state of Israel” must receive a special label that indicates the geographical origins of the item to EU consumers. This is regardless of the nature of the product: from dates from Gaza to wine from East Jerusalem. According to the ECJ, a general “made in Israel” label is not sufficient. It is important to determine what reasoning lay behind this verdict. ECJ judges adopted the ICJ’s 2004 verdict and concluded that both Israeli “occupation” and the construction of settlements in the West Bank were incongruent with international law. As a result, the ECJ’s argument was that consumers should henceforth have the option to make “informed choices”, including on the ethical debates of product sales and international law. Such choices rely on the special label that denotes the provenance of a product.

This highlights a legal-political consequence of Israel’s decision to not defend itself against certain allegations in an international lawsuit. By not mounting a defense before the ICJ in 2004, the ICJ’s opinion created irreversible effects. It is difficult to claim that had Israel defended itself, perhaps a different judgement would have been delivered. Yet former American judge at the ICJ, Thomas Buergenthal, indicated that the court “lacked many relevant facts bearing on Israel's construction of the wall because Israel failed to present them, and that the Court was therefore justified in relying almost exclusively on the United Nations reports submitted to it,” suggesting that had Israel appeared before the ICJ, a different outcome may have been reached. In the case of a hearing pertaining to the ICC’s jurisdiction, Israel cannot afford another legal/strategic miscalculation by avoiding the court.

Closing statements: lessons learned 

The question if the ICC’s criminal investigation into the situation in Gaza (2014) and the situation in the occupied Palestinian territories will occur is entirely dependent on one question: will the ICC’s judges recognize territorial jurisdiction, meaning, does this debate pertain to possible crimes committed on territory that belongs to the PA? The ultimate verdict has the potential to trigger a criminal case that in turn could have considerable legal and political ramifications for the Israeli state and her leaders. Instead of turning against the ICC and using the media to accuse this court, as well as its chief prosecutor, with allegations of demonizing and harboring antisemitic feelings against Israel – as several Israeli politicians and experts have done – it may be better for Israel to conduct a serious defense before the ICC. The strategic miscalculation that occurred in 2004 should serve as a lesson learned. The ICC’s case will ultimately be decided upon legal and historical facts; a defense based on the previously mentioned accusations of antisemitism and demonization, the appeal for sanctions against the court or referencing prior cases of other states (e.g. Syria), will not impress the ICC. With that, the answer to the question presented in the title of this article is therefore: To legally defend.