The ICC's ruling to allow the possibility of an investigation into Israeli actions is only the start of a process that is likely to go on for many years. What are the next steps and what are the possible implications for Israel?
On February 5, 2021, the International Criminal Court (ICC) issued its decision on the “Prosecution Request for a ruling on the Court’s territorial jurisdiction in Palestine.” In its majority decision, the pretrial chamber ruled that the Court’s territorial jurisdiction extends to all of the territories (the West Bank, East Jerusalem, and the Gaza Strip). Hence the ICC Prosecutor is now able to pursue her investigation regarding potential violations of the Rome Statute of the International Criminal Court (“The Rome Statute”).
Part I of this paper discusses the background to the decision by the Pre-Trial chamber. Part II summarizes the decision and offers some critical remarks. Part III outlines the possible consequences of the decision.
One caveat is required: This paper provides information and does not purport to offer a normative evaluation of the ICC or of international law in general.
The ICC is an international court in which persons accused of violating the Rome Statute (Crimes of Aggression, Genocide, War Crimes, and Crimes against Humanity) are brought to criminal justice. It began operation in 2002.For a comprehensive description of the ICC’s powers, see Amichai Cohen, “International Criminal Law,” Mishpat Beinleumi 445, 463–480, Robbie Sabel and Yael Ronen, eds. 2016. As of today, the ICC Prosecutor is engaged in proceedings relating to 13 “situations” and conducting preliminary investigations of nine more. The ICC Prosecutor deals with the criminal responsibility of individuals for violations of the Rome Statute, and not that of states.
To date, 123 countries have acceded to the Rome Statute and are considered as “Member States.”International Criminal Court, “The States Parties to the Rome Statute“
It is important to note that the ICC’s jurisdiction is limited by the Rome Statute. It cannot deal with every violation of the Statute, and its jurisdiction in not “universal.” The Court may exercise its jurisdiction only if one of several conditions is met.Articles 12 and 13 of the Rome Statute. For the purpose of this paper, the relevant conditions are that the alleged crimes were committed within the territory of a Member State, or that a State has referred the situation to the ICC.
A further condition for the exercise of the courts’ jurisdiction is the principle of complementarity. This refers to the fact that a case cannot be heard by the ICC if it was "genuinely" investigated or prosecuted by the relevant state. We shall return to this principle in Part III.
The present proceedings were initiated on January 1, 2015, when the Palestinian Authority, operating under the name “The State of Palestine” (hereinafter “Palestine”; this term will be discussed further below) referred the situation in Palestine regarding alleged violations of the Rome Statute, beginning in June 2014, to the ICC. On January 2, 2015, Palestine deposited its “Instrument of Accession” with the UN Secretary General. In May 2015 the Prosecutor, Fatou Bensouda, began a preliminary examination of the claims that violations of the Rome Statute have occurred on the territory of “The State of Palestine” in the context of the Israeli-Palestinian conflict since June 2014.
In December 2019, the Prosecutor declared that her preliminary examination had been completed, with its findings indicating that a full investigation should be opened. This is because “There is a reasonable basis to believe that war crimes were committed.” Specifically, the Prosecutor noted the following cases for investigation:
- The 2014 hostilities in the Gaza Strip (“Operation Protective Edge”), during which the Prosecutor alleges there is evidence of violations of the Rome Statute by members of the IDF and by members of Hamas and other Palestinian militant factions;
- Actions by Israeli officials, in the context of Israel’s settlement policy in the West Bank, which the Prosecutor deems to be a violation of the Rome Statute;
- Actions by members of the IDF amounting to potential violations of the Rome Statute during the demonstration near the Gaza Strip fence in 2018. The Prosecutor noted that these incidents could be included in the investigation of the situation.
In January 2020, the Prosecutor requested the Pre-Trial chamber of the ICC to confirm her position regarding two issues. First, that she is empowered to investigate the situation in the “State of Palestine”, because Palestine should be considered a member state of the ICC. Second, that the territory of “the State of Palestine” includes all the land “outside the Green Line,” including the Gaza Strip, the West Bank (Judea and Samaria), and East Jerusalem.
In the wake of the Prosecutor’s request, dozens of submissions were filed with the court, some of them supporting the request, while others opposing it. Israel did not submit a formal response, but many of these briefs offered reasons for rejecting the Prosecutor’s thesis that coincides with Israel’s positions on the matter. At the same time, the Attorney General of Israel published a legal memorandum in which he argued that the ICC lacks jurisdiction to investigate Israeli activities in the territories in question.Attorney General of Israel, The International Criminal Court’s Lack of Jurisdiction over the so-called “situation in Palestine”
On February 5, 2021, the pretrial chamber of the ICC (“the Court”) handed down its decision, in which it responded to the Prosecutor’s two questions in the affirmative.
The State of Palestine’s Accession to the Rome Statute
The Court based its response to the first question on formal and almost technical arguments, in an attempt to avoid the substantive question of the definition of Palestine as a state in international law.ICC ruling, §§87–113. In the Court’s opinion, the question of whether Palestine is in fact a member state for the purposes of the Rome Statute is to be determined on the basis of a technical criterion, that is, whether its accession to the Statute followed a correct procedure, and not by reference to Palestine’s status under general international law. The process for joining the Rome Statute allows any state to do so by depositing the instruments of accession with the UN Secretary General.Article 125 of the Rome Statute. The Palestinians followed this process. The Secretary General acted in accordance with an internal legal opinion, which determined that he should accept the instrument. This opinion was based on UN General Assembly resolution 67/19, of November 29, 2012, in which the General Assembly granted Palestine the status of a non-member observer state.UN General Assembly Resolution 67/19 (November 2012), §2. The Secretary General interpreted this resolution as permitting Palestine to accede to international treaties open to 'all states'. Palestine did in fact accede to a series of such treaties. The Court further noted that no country, except for Canada, had challenged the Secretary General’s decision to accept the instrument in question and that no country sought to raise the issue for debate by the Assembly of State Parties to the Rome Statute.
Hence, the Court stated, Palestine had acceded to the Rome Statute, and the Court is not an appropriate forum in which to appeal the Secretary General’s decision in this matter. Because Palestine was accepted as a “member state,” the Court is authorized to investigate crimes committed on its territory, regardless of whether or not it is a “state” as under substantive principles of international law.
This is the main legal point in the ruling. The Court has in effect outsourced its decision to the UN Secretary General and deferred to his determination. But the Court’s ruling on this matter includes a problematic legal assertion: Although General Assembly Resolution 67/19 was passed by a clear majority, many countries, including many member states of the Rome Statute, abstained in the vote on the Resolution. Furthermore, many countries that did vote in favor declared that they considered the Resolution to be only symbolic . In addition, General Assembly Resolutions have no binding force in international law. The Secretary General’s decision to subordinate himself to the General Assembly’s resolution is also of a technical nature and does not define the international community’s legal position on the question of statehood. In other words, the Court’s ruling means that a series of nonbinding decisions is deemed to endow the ICC with criminal jurisdiction. In my opinion, this is a very technical interpretation of the Court’s statute, which ignores the ruling’s substantive implications - especially the outcome that granting such authority means granting the authority to conduct criminal investigations against specific persons.
A possible rejoinder to these reservations is that over the course of the past decade, Palestine has been admitted to a series of international organizations, and thus its treatment as a state has become the accepted practice of the international community. In other words, it can be alleged that the international community is granting creeping recognition of Palestine’s status for the purpose of membership in international agreements. Such an argument is however an argument under general international law, not the ICC Statute.
In its ruling, the Chamber chose not to consider the Prosecutor’s alternative argument that would ground the assertion that Palestine is a state on substantive principles of international law.
The Territory of Palestine
As stated, even after the Court ruled that Palestine had acceded to the Rome Statute and could be considered a “member state,” the question of the scope of its territory remains. Only crimes alleged to have occurred on such territory may fall within the scope of the Court’s jurisdiction. Here the Court drew on two sources for its determination that “the State of Palestine” includes all the territories situated across the 1967 lines. First of all, the Court held that General Assembly resolution 67/19 and all decisions of international bodies view the territories in question as a single unit.ICC ruling, §§114–118. Second, the Court stated that under Article 21(3) of the Rome Statute, it must interpret its authority according to international human rights law. The Court ruled that the right to self-determination is a human right and, according to various decisions by international bodies, the scope of the right of self-determination of the Palestinian people extends to all of the Territories.ICC ruling, §§119–123. This seems to be the most problematic part of the Court’s ruling. It deviates here from the principle of a “technical decision” that the court tried to follow until then, and entered into the substantive issue of the scope of the Palestinian right to self-determination under general international law . The problem with this is twofold: First, Article 21(2) of the Rome Statute specifies that the Court will rely on all principles of international law and not only on human rights law. It is not clear why the Court proceeded immediately to consider the right of self-determination. According to principles of international law, there must first be a discussion of other relevant principles, for example, the right to title over territory and the law of acquisition of territory.
Second, the definition of the borders of Palestine is an extremely controversial issue. It is true that international bodies use the “1967 borders” formula, but it is clear to everyone that this is an aspirational formula tentatively delineating the future boundaries of a Palestinian State, and not a picture of the current situation.
In any case, in its response to the second question the Court ruled that Palestine includes all of the “Territories,” including the entire West Bank, Gaza District, and East Jerusalem.
The court emphasized that its decision on the questions described above sets no precedent for a ruling about the existence of a Palestinian state or its borders, but rather that it focused exclusively on whether the Prosecutor was authorized to investigate the alleged violations.ICC ruling, §§58–60.
The Oslo Accords
Another argument submitted to the Court was that the Oslo Accords deny the Palestinian Authority the right to institute criminal proceedings against Israelis. Thus, it is maintained, the Palestinians cannot delegate to the Court a power they lack.
The Court chose not to rule on this argument and wrote that the matter will be decided later, if and when indictments are filed against specific individuals.ICC ruling, §§124–129. It seems to me that the argument based on the Oslo Accords is indeed problematic. It is possible that Palestine is violating the Oslo Accords by delegating its authority to the ICC. However, the premise underlying the Oslo Accords is that there is no recognition of Palestine as a State – a proposition which the Court already dismissed. If the Palestinian Authority is to be treated as a State, then it seems that the violation of the Oslo Accords (as alleged by Israel) is found in recognizing its status as a state, and not in delegating the ICC legal powers.
The ICC’s decision is only the beginning of the investigative process. The Prosecutor’s term expires in the summer of 2021, and the future of the investigation will depend heavily on whom the assembly of member states chooses to replace her.
Two fundamental problems stand in the way of the new Prosecutor’s investigation (whoever he or she may be), and will certainly be taken into account when future decisions in this case are taken:
First, the scope of the investigation. The Prosecutor told the Court that she is interested in investigating actions taken by the Israel Defense Forces during Operation Protective Edge, Hamas’ firing of rockets into Israel, possibly also lethal incidents at the Gaza border fence, Israel’s settlement activities, and other specific matters that may arise during the course of the inquiry. This represents a very broad set of issues, with huge amount of evidence and background materials to investigate. Unless narrowed down to more specific incidents, the investigation will be very protracted.
Second, the fact that Israel, and evidently Hamas as well, will not cooperate with the ICC will make it exceedingly difficult to conduct the investigation in a speedy and efficient manner. Recalling that the ICC investigates individuals, not states, it is not enough to identify an action that might be deemed a violation of international law. It is also necessary to prove which specific individual committed the specific violation (as a rule, knowingly or intentionally).
On the assumption that the inquiry will indeed be launched, and even if it goes on for years, one can already sketch in general terms the challenges it will pose for Israel in the various proceedings.
As noted above, in her submission to the Court, the Prosecutor enumerated two main contexts in which she believes she has already identified sufficient evidence for there to be “reasonable grounds” for the assumption that there have been violations of the Rome Statute: The use of force against civilians during Operation Protective Edge (2014), and the settlements. The Prosecutor noted in addition, that she believes the investigation may be needed with regard to violations related to the use of lethal force at the Gaza border fence (2018).Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine (January 22, 2020)
Investigation of Military Actions: Operation Protective Edge
On the surface, Israel’s strongest legal position relates to military operations in the Gaza Strip, and especially Protective Edge. Following the Turkel Commission report (2012), Israel reinforced its system for investigating suspected war crimes.Yuval Shany, “The Turkel Commission’s Report (Part 2): A Quiet Revolution in the Laws of Military Investigations.” Turkel Festschrift: Philosophy, Theory, and Law 293, Aharon Barak, Karin Carmit Yefet, and Elyakim Rubinstein, eds. 2020. After Operation Protective Edge, a General Staff Investigations Unit was accordingly established to look into allegations that IDF soldiers had violated international law. The unit conducted hundreds of inquiries into such complaints while investing major investigative resources. Although most of the cases were closed by the Chief Military Prosecutor, this does not imply that the investigations were not thorough.
The main question is whether such an investigative system suffices to substantiate the argument, based on the complementarity principle mentioned above, that Israel itself conducted an appropriate inquiry so that there is no room for intervention by the ICC.
A relevant basis for comparison is the Prosecutor’s own decision, in December 2020, to close her investigation against the UK on suspicion of violations of the Rome Statute during the Iraq War.Situation in Iraq: Final Report (December 9, 2020) In that decision, she stated that the inquiries that the UK conducted into suspected violations of international law sufficed to preclude an investigation by the ICC, under the complementarity principle—even though not a single British soldier was convicted as a result of those investigations. A reading of the Prosecutor’s decision, and familiarity with the IDF’s investigative system, suggests that the latter is in no way inferior to that in Britain. Hence it seems that with regard to Operation Protective Edge, it is likely that an Israeli claim of complementarity could be sustained – assuming that Israel provides the Prosecutor with all of the relevant information about its investigations.
Investigation of the Shooting at the Gaza Border Fence
The situation is not so clear with regard to the shooting at the Gaza border fence during the “Marches of Return” in 2018, which resulted in the deaths of some 180 Palestinians (most of them members of terrorist organizations).
First, as noted, the Prosecutor has not yet decided whether in this case she has sufficient evidence of violations of the Rome Statute.
Second, with regard to the shooting, there is fundamental disagreement about the lawfulness of the Rules of Engagement (ROEs) during the protests: for example, the order to shoot at “key instigators.” The question of the lawfulness of the ROEs was submitted to the High Court of Justice. In its ruling in the petition filed by Yesh Din (an Israeli NGO), the High Court ruled that with regard to the ROEs the General Staff Investigations Unit should conduct an inquiry, supplemented if necessary by criminal investigations.Investigations were opened of incidents in which there were suspicions that soldiers acted in contravention of the open-fire orders. See, e.g., Yaniv Kubovitz, “The Killing of the Paramedic in Gaza: Chief Military Prosecutor Orders a Criminal Investigation,” Ha’aretz, 29, 2018. The High Court took note, however, of the basic position taken by the IDF-namely, that the situation was one of armed conflict, and accordingly- the rather flexible open-fire orders could not be considered a violation of international law.HCJ 3003/18, Yesh Din Volunteers for Human Rights v. the IDF Chief of General Staff, May 24, 2018. This position has been sharply criticized by several experts in international law.g., Eliav Lieblich, “Between Paradigms: The Lawfulness of the Open-Fire Orders on the Gaza District Border under International Law in the Light of the Supreme Court’s Rulings.” Iyyunei Mishpat 43 (2021).
The extent to which the High Court ruling could serve as a shield against an international investigation of cases in which the ROEs were not violated (even when resulting in loss of life on the Palestinian side), after the Court denied the petition against them, is an open question. It depends on how one understands the principle of complementarity. According to a broad interpretation of the principle, a state is entitled to complementarity whenever it demonstrates that it has independent official institutions that are able to take steps to investigate unlawful actions, at least potentially. That is, the High Court’s mere power and willingness to intervene in this issue and guide military investigations is enough to activate the complementarity principle, and there would be no international inquiry of the matter. But a narrower interpretation of the principle would require that there be an actual investigation of the concrete cases reviewed by the ICC, and that the mere existence of independent institutions is insufficient. If the latter interpretation is to be accepted, the High Court’s finding that the actions in question were lawful would not necessarily serve as an obstacle to an international investigation; it would be necessary to demonstrate that genuine inquiries were conducted.
There are few ICC precedents on this matter. To the extent that they do exist, however, they seem to point to a narrow interpretation of the principle of complementarity. As a result, a ruling in principle by the High Court of Justice might not be enough, and there must be evidence of actual inquiries into all specific allegations.Prosecutor v. Ruto Judgment on the appeal of the Republic of Kenya against the decision of the pre-Trial chamber (August 30, 2011) para. 38: “The question is not merely a question of ‘investigation’ in the abstract, but is whether the same case is being investigated by both the Court and a national jurisdiction” Once the Prosecutor has decided that there was a basis to the claim that an investigation should be conducted she will not suspend her inquiry only because some internal agency, even if an independent one, ruled that no investigation was required.
In any case, this is a controversial issue, and it is hard to predict which way the chips will fall.
The settlements are the third issue cited by the Prosecutor. Here, of course, there is no possibility of an Israeli argument of complementarity. The High Court of Justice has reviewed specific land disputes involving the location of settlements, but has never ruled that the settlements are lawful, or that they are illegal per se, and has viewed the matter as a political issue that it cannot decide.HCJ 4481/91, Bergil v. the Government of Israel, D. 47(4), 210 (1993). The fact that the international community sees the very establishment of the settlements as a gross violation of international lawg.UN Security Council Resolution 2334 (2016). has been rejected by Israel.Ministry of Foreign Affairs, Israeli Settlements and International Law (November 30, 2015) It is reasonable to assume that an investigation by the ICC would not target the settlers themselves, but rather-- the political echelons that decided to establish the settlements. With regard to the settlements, and all the other topics, the Court’s purpose is to apprehend the main perpetrators of illegal actions. This leads to a significant difficulty that investigations of this matter would face: Would the ICC seek to investigate the prime minister? Or the defense ministers? Or those who decided to establish specific settlements? Another difficulty here relates to the matter of timing: Would the inquiry be limited to settlements established after 2014, when the Palestinians authorized the Court to investigate? Or would the Court view the settlements as a “continuing violation,” and allow the investigation to address earlier periods as well?
It should be noted that the Prosecutor emphasizedProsecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine (January 22, 2020), §98. that the inquiry itself might uncover suspicions of additional unlawful acts. On one front, at least, a High Court ruling may have removed the threat of an investigation of Israel. In the matter of the Settlement Regularization Law, the argument was raised that its implementation might be seen as a violation of the Rome Statute.HCJ 1308/17, Silwad Municipality v. the Knesset, request to file an amicus curiae brief, §143. The High Court’s decision to strike down the lawHCJ 1308/17, Silwad Municipality v. the Knesset, ruling, June 9, 2020. may have spared Israel an investigation of this action as well.
The decision by the Pre-Trial Chamber affirming the Prosecutor’s authority to launch an investigation is only the beginning of an inquiry that may haunt Israel for many years to come.
For most of the time, the investigation will be conducted under the radar screen and without media coverage. Should it be decided to file charges against any individual Israeli, the first step might be issuing a confidential international arrest warrant. Were any Israeli to be arrested pursuant to such a warrant, there is little doubt that the proceedings would attract massive public and media attention.
Until then, it is not inconceivable that the Israeli authorities will continue to take actions, some of them in concert with other countries, and others in unofficial cooperation with the ICC, in an attempt to thwart the progress of the investigation towards the filing of indictments. In this context, it is especially important that Israel provides information to the ICC regarding it own investigations, so as to prevent investigations at least on those issues where the principle of complementarity applies.