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Israel and the International Criminal Court

by Mitchell Bard

The Palestinians have for years tried to convince the International Criminal Court (ICC) to charge Israeli soldiers and politicians with war crimes. The approach to the ICC is part of the desperate effort by Palestinians to find some international body that will force Israel to capitulate to their demands. Nothing the ICC can do, however, will bring the Palestinians one iota closer to statehood. Nevertheless, they cheered the court’s decision on February 5, 2021, claiming jurisdiction in the West Bank, East Jerusalem, and Gaza.

The same day the State Department issued a statement:

As we made clear when the Palestinians purported to join the Rome Statute in 2015, we do not believe the Palestinians qualify as a sovereign state, and therefore are not qualified to obtain membership as a state, or participate as a state in international organizations, entities, or conferences, including the ICC.
We have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. The United States has always taken the position that the court’s jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council.

Similarly, Israel rejected the decision because no sovereign Palestinian state exists. Other countries, including Germany, Hungary, Australia, the Czech Republic, Austria, Brazil, Uganda and Canada also expressed opposition to an ICC probe of Israel. Israel has no right of appeal because it is not a member of the court.

The United States and Israel have consistently said they will not recognize the jurisdiction of the court over their citizens. In 2002, Israel and the United States signed an agreement which said that they would not extradite, transfer or surrender any citizens of the other state to the Court, or to a third country which may surrender them to the Court.In 2012, the Palestinians’ application to join the court was rejected. Three years later, Congress required the Secretary of State to certify that the PLO wasn’t trying to use the ICC against Israel. The Palestinians ignored the warning and reapplied for membership in 2015 and the ICC accepted the application of the non-existent state of “Palestine.”

The Palestinians subsequently filed several complaints against Israel and Israeli official without suffering any negative consequences from the United States. The Palestinians’ action could have triggered the cut off of $400 million in U.S. assistance according to a law allowing the termination of aid if they supported an ICC investigation of Israel. President Obama, however, used a waiver provided by the legislation to avoid penalizing the Palestinians.

In June 2020, the Trump administration announced sanctions against the ICC and reiterated longstanding policy that Americans are not subject to its jurisdiction. The principal motivation for the decision was anger over the court’s investigation of alleged U.S. war crimes in Afghanistan; however, Secretary of State Mike Pompeo reportedly conferred in advance with Israeli Prime Minister Benjamin Netanyahu about Israel’s concerns about the ICC during a trip to Jerusalem.

In announcing the sanctions Pompeo said the United States is “also gravely concerned about the threat the court poses to Israel. The ICC is already threatening Israel with an investigation of so-called war crimes committed by its forces and personnel in the West Bank and in the Gaza Strip. Given Israel’s robust civilian and military legal system and strong track record of investigating and prosecuting wrongdoing by military personnel, it’s clear the ICC is only putting Israel in its crosshairs for nakedly political purposes. It’s a mockery of justice.”

Pompeo acknowledged receiving letters from a bipartisan group of 69 senators and 262 House members urging him to call on the ICC to halt its “politically motivated” investigations of Israel and the United States. “That’s what the U.S. is dead set on doing, and with good reason,” Pompeo declared. “They’re a trusted and wonderful partner and a buttress of American security. If a rogue court can intimidate our friend or any other ally into abrogating its right to self-defense, that puts Americans at risk as well.”

Netanyahu applauded the U.S. decision, calling the ICC “corrupt,” “biased” and “politicized.” He accused the court of fabricating “outlandish charges,” such as that “Jews living in their historic homeland constitutes a war crime.”

After a five-year preliminary examination, ICC Prosecutor Fatou Bensouda said on December 20, 2019, “There is a reasonable basis to believe that war crimes have been or are being committed in the West Bank, East Jerusalem, and the Gaza Strip.” She suggested investigating crimes committed by both Israel and Hamas during Operation Protective Edge; those committed by Israel in response to the riots during the “Great March of Return”; and those committed by Israel through settling Israeli civilians in disputed territory.

Bensouda based her decision to move forward on her insistence that Palestine is a state and that the court has jurisdiction over crimes committed in territories controlled by Israel. She reiterated this view in April 2020.

Israeli Attorney General Avichai Mandelblit published a rebuttal to Bensouda initial claim, making the case that the ICC lacks jurisdiction over the case because “no sovereign Palestinian State is in existence” that could delegate to the court criminal jurisdiction over its territory and nationals.

Before Bensouda could proceed with an investigation, ICC Judges Péter Kovács, of Hungary, Marc Perrin de Brichambaut, of France, and Reine Adélaïde Sophie Alapini-Gansou, of Benin had to determine whether it has jurisdiction.

Seven states were invited to submit opinions. All seven asserted the “State of Palestine” does not presently satisfy the conditions to be considered a state because the Palestinian Authority does not control the territories. According to Alexander Loengarov, an official at the European Economic and Social Committee, “the ICC was established with the goal of not letting allegations of serious crimes go unscrutinized,” so the court may accept that “Palestine possesses sufficient characteristics of a state” and award itself jurisdiction to investigate alleged Israeli crimes “regardless of whether the alleged perpetrators are Israeli or Palestinian.”

As Alan Baker noted, the court should have no jurisdiction because “Israel is not party to the Rome Statute, the treaty that lays the architecture of the International Criminal Court and defines international crimes.” Baker added that the “integrity and credibility” of the ICC has been irreparably damaged. The irony, he said, is that “an independent juridical body devoted to preventing impunity enjoyed by the most serious and atrocious war criminals, by bringing them to justice, is now being politically manipulated against the one state that since the early 1950s has consistently advocated the establishment of such a body, the State of Israel.”

The judges from France and Benin accepted the premise that since the PA joined the Rome Statute, it should be treated as a state. Justice Kovács rejected their argument and said the majority’s opinion has “no legal basis in the Rome Statute, and even less so, in public international law.”

Judy Maltz and Netael Bandel noted that “Palestine is defined as an ICC member state that has the ability to grant the court jurisdiction to investigate crimes in its territory, but the ruling doesn’t mean the court recognized Palestine as meeting the criteria for statehood under international law.

The court’s decision to claim jurisdiction does not automatically mean that Israelis will be investigated. The prosecutor may begin an investigation, however, Bensouda’s term ends in June and her successor may choose not to continue her work.

In addition, after announcing a formal investigation, Israel has 30 days to inform the prosecutor of its intent to conduct its own investigation into potential war crimes and crimes against humanity. This requires the approval of the prosecutor and the ICC.

At worst, the ICC could charge and potentially convict some Israelis of war crimes. It will take some time to identify suspects, however, and the standard for such prosecutions is high. The ICC has only prosecuted 30 cases since the court was created in 2002, winning only nine convictions. It is unlikely the court would have better luck finding fault with the democratically elected leaders of Israel or the soldiers of the IDF. Israel would fight any prosecution vigorously and, like the United States, refuse to recognize the court’s jurisdiction over its citizens.

As with other bodies, such as the Human Rights Council, the focus on Israel, a democracy with an independent judiciary that investigates accusations of abuse, represents a double standard. The ICC is not investigating blatant crimes committed by serial human rights abusers such as Turkey, China, and Russia. It has not, for example, charged Syria’s Bashar Assad for his use of chemical weapons against his citizens.

Another implication of the decision is to potentially prevent the Biden administration from restoring aid to the Palestinians. The Consolidated Appropriations Act of 2015 says that no Economic Support Funds can be provided to the Palestinian Authority if “the Palestinians initiate an International Criminal Court judicially authorized investigation, or actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.”

The Palestinians should also be careful what they wish for because Israel could bring charges against the terrorists in “Palestine,” for whom the evidence of war crimes is overwhelming. Rather than standing at the head of an independent state, Mahmoud Abbas could find himself in the dock facing imprisonment as a war criminal for his responsibility in inciting violence.


Sources: International Criminal Court.
John Reed, “Palestinians join ICC in politically charged move,” Financial Times, (April 1, 2015).
Marlise Simons, “Palestinians deliver accusations of Israeli war crimes to International Criminal Court,” New York Times, (June 25, 2015).
Raphael Ahren, “The Hague vs. Israel: Everything you need to know about the ICC Palestine probe,” Times of Israel, (December 23, 2019).
Alexander Loengarov, “State of Jurisdiction: The International Criminal Court and the ‘Situation in Palestine,’” Washington Institute, (April 24, 2020).
Raphael Ahren, “Chief prosecutor insists ICC has jurisdiction to probe war crimes in ‘Palestine,’” Times of Israel, (April 30, 2020).
“Secretary Michael R. Pompeo At a Press Availability with Secretary of Defense Mark Esper, Attorney General William Barr, and National Security Advisor Robert O’Brien,” U.S. Department of State, (June 11, 2020).
Barak Ravid, “International Criminal Court moves closer to investigation of Israel,” Axios,(June 12, 2020).
Noa Landau, “U.S. Decision to Sanction International Crime Court Was Coordinated With Israel, Source Says,” (Haaretz, June 12, 2020).
Barak Ravid, “Trump administration coordinated ICC sanctions with Israel,” Axios, (June 12, 2020).
Isabel Kershner, “I.C.C. Rules It Has Jurisdiction to Examine Possible Israel War Crimes,” New York Times, (February 5, 2021).
Alan Baker, “This flawed decision turns the ICC itself into just one more Israel-basher,” Times of Israel, (February 6, 2021).
Judy Maltz and Netael Bandel, “What Does the ICC Ruling Mean for Israel, the IDF and the Palestinians?” Haaretz, (February 6, 2021).
Lahav Harkov, “Germany, Hungary join states opposing ICC probe of Israel,” Jerusalem Post, (February 9, 2021).
“The International Criminal Court and the Israeli-Palestinian Conflict,” BICOM, (February 10, 2021).