By Daphne Richemond Barak & Oded Ranaan
The majority judges’ announcement that the Court has jurisdiction over the West Bank, Gaza and East Jerusalem increases the chances of an investigation into crimes Israelis allegedly committed there. In an interview with "The Arena," international law expert Dr. Daphné Richemond-Barak explains that while the judges' decision is a worrisome development, Israel still has options – but only if it truly begins planning ahead.
On February 6th, 2021, the International Criminal Court announced that it has jurisdiction to investigate alleged war crimes committed in the West Bank, Gaza Strip, and East Jerusalem by Israelis and Palestinians since 2014.
In an in-depth interview, we discussed the new situation and possible paths of action for Israel with Dr. Daphné Richemond-Barak, Assistant Professor at the Lauder School of Government, Diplomacy, and Strategy, and an expert in international law.
A year in limbo
Q: The ICC’s announcement may have severe legal implications for senior Israeli politicians, government officials and military officers. Can you go back on the chain of events that led to this important moment?
“The announcement came over a year after the ICC’s Prosecutor, Fatou Bensouda, announced in December 2019 that there is sufficient evidence to merit an investigation over acts committed on the territory of Palestine. Instead of moving ahead right away with an investigation, however, Bensouda decided to seek the view of the ICC’s Pre-trial Chamber judges on what constitutes the territory of Palestine – which she saw as including the West Bank, Gaza, and East Jerusalem. She didn’t have to seek the judges’ validation, but she did, and that started a lot of back-and-forth with them which lasted over a year.
“The Pre-trial Chamber’s decision – which embraces Bensouda’s own findings – now enables Bensouda, who is leaving her position in June, to seal her legacy with respect to this high-profile case. Determining the scope and specifics of the investigation, however, will probably be left to her successor, British barrister Karim Khan, who was elected a week after the Court's decision was made public.”
Q: Why did the Prosecutor chose to seek the judges’ opinions given that she wasn’t legally obligated to do so?
“She's had issues in the past with the Pre-Trial Chamber; incidentally, it also involved Israel because it was connected to an investigation on the events related to the Mavi Marmara incident in 2010. In 2013 the Comoros Islands, under whose flag the ship sailed, formally requested the Court to investigate what happened on board the ship, but Bensouda declined to open an investigation. This led to a political confrontation between her and the judges, who criticized her decision and even tried to get her to change her mind. She has since stuck to her guns, so they are not on the best possible terms.
“This might be the reason that led her this time around to try and get them on board. When you get people to participate and provide their own opinion, they are less likely to criticize you down the road. A lot of this has to do with internal ICC politics, as you can see.
“But there is another possible reason for her seeking the judges’ validation on what constitutes the territory of Palestine: to endow the investigation with the greatest possible legitimacy, it having been ‘endorsed’ by both the Prosecutor and the judges of the Pre-Trial Chamber. One thing is for sure, it is an unusual move and it is not readily evident why Bensouda chose that path.”
Q: So is the Prosecutor now on firm grounds to go ahead with the investigation of acts allegedly committed by Israelis on the territory of Palestine?
“The Court took a very simple route: since the UN General Assembly allowed Palestine to become a part to the Court’s Statute, the Court held that Palestine constitutes a state for purposes of the ICC proceedings – and such proceedings only. Interestingly, the majority decision emphasized on several occasions that this does not prejudge in any way on whether Palestine is a state, or what constitutes its territory. By doing so, the judges purposefully limited the scope of their findings.
“It also stands out that the judge presiding over this panel of three judges dissents on important aspects of the decision. According to Judge Kovács of Hungary, the territory of Palestine does not include ‘the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem,’ as the majority opinion states. In Kovács’s opinion, the Court must take into account the Oslo Accords, which limited Palestinian sovereignty over some of these territories, such as [Israeli-controlled] 'Territory C'. And unlike the majority opinion, Kovács analyzes the Oslo Accords in great detail.
“For Israel, this dissent carried great weight: it weakens the majority opinion, which pales in legal rigor compared to Kovács’s opinion. It conveys the existence of significant disagreement within the bench, and, ultimately might make it more difficult for the Court to investigate acts that occurred in these two areas. But does it prevent the opening of an investigation? Certainly not.”
Law and politics, or just politics?
According to Richemond-Barak, the ICC legal process is heavily influenced by politics. “The judges’ decision”, she explains, “was first expected around the time of Israel’s announcement in the Spring of 2020 that it intends to annex the West Bank by July 1st of that year, having received the thumbs-up from the Trump administration. In the end, a potential annexation was nixed – officially in favor of forging diplomatic ties with the United Arab Emirates, Bahrain and, later, additional Arab and Muslim countries. As July 1st came and went, and annexation did not take place, momentum for a decision faded.
“But if anyone still questioned the significance of the political undercurrents behind this process, the eventual publication of the decision – less than two weeks after President Biden’s inauguration – cleared any doubts. The Court had reasons to fear the Trump administration’s reaction to the decision, which had previously imposed sanctions on Bensouda herself, so it waited. This conduct doesn’t reflect terribly well on the idea of a court of law, driven solely by the ideal of justice and operating undeterred from the pressures of the world around it.”
Q: Now that the judges have published their decision on the question of jurisdiction, do you think Bensouda will advance opening a formal investigation? What other considerations may potentially affect her decision?
“My sense is that she can now leave office having brought this critical preliminary stage to completion. I don’t see her taking any further steps currently, except perhaps formally opening the investigation now that she has, so to speak, received the judges’ blessing. But Khan, her successor, will be the one to actively shape the investigation by deciding which specific acts to investigate, how many indictments to issue and against whom, et cetera.
“I should add that this decision comes on the backdrop of an ongoing crisis of legitimacy for the Court. The institution has recently been scrutinized by an independent committee of experts, tasked with writing a report on issues regarding the ICC as a workplace, but also, in the broader sense, to forecast what the future holds for it. As a relatively young institution, the ICC has yet to carve a role for itself in the international landscape and assert its integrity and credibility. I fear that the latest decision, strikingly weak on the law, may not have been a step in the right direction.”
The Israel connection
Despite the Pre-trial Chamber’s decision, any possible sanctions against Israelis are still uncertain and will likely not occur in the next few years. Nevertheless, Richemond-Barak warns that Israel cannot rely on external factors to solve its issues vis-à-vis the ICC.
“The newly elected Prosecutor is unlikely to shield Israel from scrutiny. I already mentioned that Bensouda paid a heavy political price by declining not to open an investigation into the Mavi Marmara incident.
“Would another prosecutor have made the same decision? It’s hard to say. Any situation that involves Israel always attracts significant attention. But even on the Palestinian issue Bensouda took her time and didn't open the investigations right away, so theoretically Khan could be more aggressive and speed up the process. However, he’s likely to fully review the information before him before making any further decision on this investigation.”
Q: What legal angle do you expect the Court to pursue going forward, and why?
“In my opinion, the most dangerous legal grounds from Israel’s point of view are those that relate to the settlements. The ICC’s mandate is based on the principle of complementarity – it only has jurisdiction to investigate and prosecute alleged crimes when states have either been unable or unwilling to do so themselves in a fair manner. The ICC complements states in administering justice, it does not replace them.
“Building settlements is part of the policy of the State of Israel. The Israeli government therefore cannot claim that it is investigating and looking into potential violations of international law that relate to the settlement enterprise.
“This is an area is where Israel is on weaker legal ground, as complementarity and the robust Israel judicial system cannot shield it from the Court’s jurisdiction. Israel should pay careful attention to this matter. There might be a sense that settlement building does not amount to a crime that ‘shocks the conscience of humanity.’ It would certainly have to meet the gravity threshold set under the Court’s statute in order to go forward. For now, however, the recent decision of the judges makes no reference to the settlement enterprise.”
Q: In your opinion, what approach will the new Biden administration likely take vis-à-vis the ICC?
“President Biden is unlikely to go back to the relatively warm relationship that President Obama had with the Court, mostly because right now there's also a looming investigation against US personnel in Afghanistan. It’s important to remember that the US’s position used to be aligned in many ways to that of Israel: Both states chose not to become party to this institution. This explains why the State Department has expressed ‘serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel’ shortly after the Court’s announcement.
“The State Department also stressed that Palestine does not qualify as a sovereign state. This is an important statement, but Israel should not take it as offering a blanket guarantee of support – particularly on the delicate issue of the settlements, which sidesteps the principle of complementarity and is less likely to be blocked by a Biden administration.”
“Other important states, such as Canada and Australia, have stepped forward in recent days in a similar spirit – primarily objecting to having the question of Palestinian statehood and the delimitation of Palestinian territory resolved by the ICC, instead of bilateral negotiations between the parties. In this regard, it’s important to reiterate that the finding that Palestine is a state within the framework of the ICC does not extend to the status of Palestine outside that context – for example, at the United Nations or before other international judicial institutions.”
Policy recommendations for Israel
Q: Since no one can imagine the current government, or future ones, formally stopping the settlements or dismantling them, what can Israel do now to defuse this situation?
“It's important to stress that since the famous (or infamous) Goldstone Report was issued in 2009, Israel has invested considerable resources and established new departments and processes to tackle international legal challenges. And Israel has done well by publishing Attorney General Mandelblit’s comprehensive report around the same time as the Bensouda published her own in December 2019, providing a snapshot of Israel’s position on the opening of an investigation by the ICC.
“What can Israel do today, ahead of a possible ICC decision to investigate? First, try to shape – or participate in shaping – the priorities of the ICC in the coming five to ten years. I’m not sure what channels of communication exist between states – especially non-party states like Israel – and a prosecutor regarding the scope of an investigation, but I see an added value in maintaining dialogue.
"As a general rule, I am in favor of multilateral engagement. I know decision-makers in Israel don't necessarily share this view, for reasons that range from sheer fatalism – 'it won’t have any impact anyway' – to the fear of conferring too much legitimacy to highly politicized international institutions. In the past, Israel declined to cooperate with commissions of inquiry established by the UN Human Rights Council or with the International Court of Justice when it examined the legality of the security fence. I, however, prefer when Israel lays down its narrative and arguments, directly or indirectly, and makes its case.
“Second, Israel should seek independent advice from leading legal experts. The Palestinians have been doing this for over a decade and have crafted a very smart, creative, and impressive legal strategy when it comes to the ICC and other international bodies. It’s clear that Palestine sought the advice of very clever international lawyers in this respect, who have suggested innovative interpretations of the statute of the Court. Getting access to the ICC was entirely out of reach for the Palestinians only 10 or 12 years ago, but they succeeded, and so to some extent the Court’s recent decision demonstrates that such smart and consistent legal strategy pays off.
“The conclusion is that Israel should seriously seek the advice of people who are going to devote more than five minutes asking themselves what else could be done. They need to spend weeks and months together planning a strategy of proactive engagement. It doesn’t come overnight. The Palestinians have proved that this strategy works and there's no reason why Israel shouldn’t be doing the same. Israel can learn from this.
“I find that too often in this type of decision-making, Israel involves actors at the political level and ministerial levels that can’t agree with one another. In addition, the view that legal processes remain separate from diplomatic and strategic ones remains too prevalent. The political and legal aspects are closely connected.”
Q: So formulate a strategy, not merely tactics.
“Yes. Israel is often busy extinguishing fires, on both the military battlefield and the legal ‘battlefield.’ Its needs instead to devise a long-term plan regarding international institutions, particularly judicial institutions such as the ICC. Dealing with problems as they come is not enough – it’s time to ask the hard questions: where does Israel see itself in the legal arena in five or ten years? What are the objectives and how does it get there? The recent ICC decision demonstrates the necessity behind such a mindset.”
