A discussion of the Palestinian Authority's declarations to the International Criminal Court (ICC) in 2009 and 2015, the changes that influenced the ICC prosecutor's decision to accept the PA's second declaration, and the conditions that must be fulfilled in order for the ICC to apply its jurisdiction to the IDF's actions during Operation Protective Edge or to the settlement enterprise.
On January 1, 2015, the Palestinian Authority (PA) submitted a declaration to the prosecutor of the International Criminal Court (ICC) accepting the Court’s jurisdiction over actions conducted in its territory since June 13, 2014, and additionally acceding the ICC as a permanent member. This request raises again the question of the ability of the PA to apply the jurisdiction of the ICC to actions of the Israel Defense Forces (IDF) against Palestinian terrorist organizations, and against Hamas in particular. Within the timeframe stipulated by the PA for applying the Court's jurisdiction, two main subjects could be relevant to the Court’s authority:
- IDF actions during Operation Protective Edge, especially concerns about violations of the laws of war that were raised given the large number of dead and injured Palestinian civilians and the extensive damage caused to civilian property in Gaza.
- The settlement enterprise in Judea and Samaria.
This declaration of acceptance of jurisdiction of the ICC is the second time the PA has attempted to refer the Israeli–Palestinian conflict to the ICC. In this article, we will discuss the PA’s previous declaration, which was made in 2009, the key changes that have occurred since that declaration was rejected, and the way these changes affected the prosecutor's apparent decision to accept the declaration this time. Further, we will discuss the conditions that must be fulfilled in order for the ICC to apply its jurisdiction in relation to the IDF's actions or the settlement enterprise, now that the declaration of the PA has been accepted.
The ICC is an international judicial institution established by the Rome Statute in 2002. It was founded in order to bring to justice those responsible for the most egregious violations of international law. The ICC has jurisdiction over the international crimes of Genocide, War Crimes, and Crimes against Humanity. It should be noted that an additional crime, the crime of aggression, was added to the Rome Statute by the member States at the Review Conference of 2010 in Kampala, Uganda; however, the Court can only exercise jurisdiction over this crime if the States involved have ratified this amendment and only after 2017.
The ICC is currently investigating nine “situations,” all in African states, and has initiated criminal investigations against 23 individuals as part of these investigations. One case has concluded with a conviction and the rest are in various stages of criminal proceedings. As is apparent from the small number of defendants, the Court does not purport to bring to justice every person who was involved in international crimes that fall under the Court’s jurisdiction; rather, the Court focuses on the leaders of States or organizations who are responsible for the most serious crimes, and aims to deter the perpetration of additional crimes.
The ICC's jurisdiction is territorially limited. The Court’s authority applies only in one of the following situations:
- Crimes committed in the territory of a State that is a party to the Rome Statute, or by one of its nationals.
- Crimes committed in the territory of or by a national of a non-party State that referred a situation for the Court for investigation on an “ad hoc” basis, or;
- Crimes that were referred to the Court by the UN Security Council (as occurred in the past in the cases of Sudan and Libya).
On January 16, 2015, the prosecutor of the ICC declared that the PA should be considered a state, and therefore decided to accept the referral of the PA, thus declaring that the ICC has territorial jurisdiction over the situation.
Additionally, there are three pre-conditions for the ICC to exercise its jurisdiction:
- There is no State with jurisdiction over the alleged perpetrator that is willing or able to prosecute him (the principle of complementarity).
- The Court will only adjudicate the most egregious crimes that are of greatest concern to the international community (the principle of gravity).
- The Court will not exercise its authority to initiate an investigation that is contrary to interests of justice.
The first two conditions are the most important. These are the conditions that will determine whether an investigation will indeed be initiated into IDF actions in Gaza or into the settlement enterprise.
On January 22, 2009, the PA submitted a declaration to the former prosecutor of the ICC in which it accepted the Court’s jurisdiction over actions that had been conducted in its territory since 2002. As part of the public discussion that ensued, arguments were presented to the former prosecutor of the ICC focusing on whether article 12(3) of the Rome Statute can be interpreted in a way that would regard the Palestinian Authority as a State, on the conditions for the Court’s jurisdiction, on the question of the definition of a State under international law, and more.
On April 3, 2012, the former prosecutor announced his decision: The PA's declaration did not meet the threshold conditions of Article 12(3) of the Rome Statute because it was not clear whether the Palestinian Authority is a State under international law. This decision was primarily based on the fact that the PA was not a member state of the United Nations. The prosecutor also noted that the Assembly of State Parties to the Rome Statute could decide to treat the PA as a State for the purposes of the ICC Statute if they so desired, or that competent organs of the United Nations might affect future decision on this issue.
On January 1, 2015, the PA again turned to the ICC prosecutor with a request to apply the jurisdiction of the Court to actions conducted in its territory since June 13, 2014. Two key developments occurred since the former prosecutor’s decision in 2012 that led to a different decision this time.
First, on September 23, 2011, the status of the Palestinian Authority in the United Nations was upgraded to that of a non-member State. Indeed, the PA was not accepted as a full member of the UN, because full membership requires approval by the Security Council, and this was not granted. However, the prosecutor considered this upgraded status to be significant. Second, the PA signed numerous international conventions in recent years, including the Geneva Conventions, which regulate the laws of war. The prosecutor stated that the willingness of other States to recognize the PA signals its acceptance as a State by the international community.
As stated, the ICC prosecutor accepted the Palestinian declaration on January 16, 2015, and the territorial hurdle before an ICC investigation was cleared. The main obstacles which remain are the principles of complementarity and gravity. Below is our analysis of these conditions and the possibility that they will be satisfied.
As noted, an important limitation on exercising the ICC’s jurisdiction is the principle of complementarity. Under Article 17 of the Rome Statute, the ICC will deem a case inadmissible when the State that has jurisdiction is unwilling or unable genuinely to carry out the investigation or prosecution. Article 17(2) of the Rome Statute outlines the criteria for determining unwillingness to genuinely carry out an investigation:
- The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in Article 5;
- There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
- The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intention to bring the person concerned to justice.
A genuine investigation must be conducted in good faith—that is, with the intent of prosecuting the person under investigation to the fullest extent of the law, and not with the intent of shielding him from prosecution. In addition, it must be conducted without unjustified delays. Finally, the investigation must be independent and impartial.
In the past, two international bodies criticized the way in which Israel investigates alleged violations of the laws of war. The first critique was expressed by the Goldstone Commission, which completely dismissed (wrongly, in our opinion) the IDF’s system of investigation. This conclusion is far-reaching, yet it reflects the problematic image of the Israeli military justice system and the limited trust it is accorded in the international arena. The second critique was expressed by the Tomuschat Committee, which examined the investigations that Israel conducted following the release of the Goldstone Report and criticized the structure of IDF investigations. In particular, the Tomuschat Committee noted that while Israel was making an effort to maintain the structural independence of the Military Advocate General (MAG), the fact that the MAG "wears" two hats (both advising the IDF regarding planned actions and investigating the legality of the same actions) prevents him from investigating in an impartial way.
There is considerable international skepticism, therefore, about Israel’s claim that it respects and upholds the laws of war in its military actions and that it appropriately investigates alleged violations that occur during such actions. This skepticism has been expressed not only by Goldstone and Tomuschat and by States that are normally hostile to Israel (which have a negative view of Israel's activities in any event), but also by friends of Israel around the world. In order to counter allegations that it has violated laws of war in a military conflict, Israel must demonstrate that it appropriately investigates such allegations. A proper investigation system is the instrument with which Israel can cope with international criticism and gain legitimacy for its position. For this reason, it is vital that Israel's method of investigation will be recognized as meeting international standards, which require transparency, independence, promptness, and efficiency. Only this type of investigation can protect IDF soldiers from the exercise of jurisdiction by international tribunals and especially by the ICC.
Arriving at such a mechanism was precisely the objective of the Turkel Commission. The Turkel Commission's report, which was issued in 2013, recommends ways to improve IDF mechanisms for investigating soldiers, commanders, and civilian leaders in cases of alleged violations of international law. The Turkel Report and its recommendations have been implemented (in part, so far) by the IDF and the MAG, with the explicit aim of meeting the conditions of complementarity and of preventing external investigation of alleged war crimes committed by IDF soldiers and commanders.
It is important to remember that in response to allegations of war crimes by IDF forces during Operation Protective Edge, the UN Human Rights Committee decided to establish a commission of inquiry to investigate suspected violations of the laws of war in that operation. Like the Goldstone Commission that was established by the UN Human Rights Committee to examine IDF actions in Operation Cast Lead, this commission will be able to recommend that if Israel does not investigate and prosecute violations of the laws of war, the ICC prosecutor should initiate an investigation. In addition, on the substantive level, the commission’s recommendations can be used by the prosecutor in every future decision to initiate an investigation relating to alleged violations of international criminal law.
In this context, it is important to emphasize the decision of the MAG, Major General Danny Efroni, to conduct several criminal investigations of events that occurred during Operation Protective Edge. The MAG Corps investigations are, of course, first of all conducted in order to find out if there were violations of the Laws of Armed Conflict, domestic or international. As long as they are conducted in accordance with the international standards cited above and are genuinely intended to uncover the truth rather than merely to provide protection from international investigation, these investigations are also likely to serve as an effective shield against international intervention. Investigation by the MAG Corps at this time is relevant both to the ICC and to States that seek to exercise universal jurisdiction.
An additional condition for exercising the ICC’s jurisdiction is the gravity requirement, which includes either a qualitative component (for example, widespread commission of international crimes) or a quantitative one (for example, the commission of a grave crime like Genocide). The following alternative criteria help to determine whether the gravity threshold is met: the scope of the alleged crimes, the way they were carried out, and their actual impact.
The allegations against Israeli activity (based on alleged violations during Operation Protective Edge, and the settlement activity) both relate to War Crimes. The prosecutor’s previous decisions indicate that an alleged War Crime fulfills the gravity requirement when the act was committed as part of a plan or policy (in which case, the qualitative component will exist) or as part of wide-scale activity (in which case, the quantitative component will exist). Thus, in order for the principle of gravity to be satisfied, this threshold must be met.
Notably, when the ICC prosecutor decided to reject the request to initiate an investigation of the events of the Gaza flotilla, she noted that her decision was largely based on her finding that the incidents did not meet the gravity requirement. In particular, she noted that in her view, the events of the flotilla could not be considered part of a wider-scale armed conflict, such as the conflict between Israel and Palestinian terrorist organizations. This statement could suggest that in the prosecutor’s view, allegations relating to events that occurred during the armed conflict between Israel and Palestinian terrorist organizations, including the events of Operation Protective Edge in the summer of 2014, indeed meet the qualitative part of the gravity requirement. The reason for that is that during Operation Protective Edge numerous incidents occurred, unlike the Gaza flotilla incident, which only included one incident.
Naturally, we do not possess information about specific incidents in which allegations of war crimes have been raised. A number of incidents are currently under criminal investigation by the Criminal Investigation Division (CID) of Israel's Military Police and the MAG Corps. Those units must be allowed to complete their investigations.
In general we can say that in recent years, significant progress has been made in integrating compliance with the laws of war into all levels of activity in the IDF. The role of legal advisers is clearly stated in various operational orders of the IDF. The number and scope of legal advisors is becoming more and more significant. For example, during Operation Protective Edge, legal advisers were integrated into the various command centers. They advised a growing number of officers at the level of the General Staff, Regional Commands, and even Division Commanders.
The role of IDF legal advisors in wartime is extremely important. The IDF operates in a complex environment in which uncertainty casts a shadow of doubt on most of the possible methods of operation. In many cases, it is difficult to distinguish between an innocent civilian and a terrorist. Similarly, it is often unclear whether a target is a legitimate military target or an illegitimate one. The fact that Hamas systematically violates the laws of war makes it more difficult for the IDF to accomplish its military goals while adhering to the laws of war. This situation often leads to cancellation of military actions such as air strikes.
The positive developments mentioned above do not guarantee, of course, that war crimes were not committed during Operation Protective Edge. Yet, the fact that much of the use of armed force is reviewed by legal advisers hopefully contributes to a controlled and legal exercise of military power. In fact, within the Israeli-Palestinian context, it is absolutely clear that most of the violations of international law actually have been committed by Palestinian terrorist organizations and by Hamas in particular. These violations include the intentional firing of missiles into civilian populations, the use of protected facilities and ambulances for military purposes, placing military targets in the midst of civilian populations, and more. All of these are grave violations of the laws of war, which the ICC will have to investigate if it decides to initiate an investigation in the Israeli-Palestinian context. Over the years, it has been argued that the Palestinians would not join the ICC due to fear of investigations that would be conducted against the PA. This prediction has now been proven to be false.
Beyond the activities of the IDF, another issue of major concern for the State of Israel regarding the ICC’s jurisdiction is the settlement enterprise. According to Article 8(2)(b)(vii) of the Rome Statute, “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” constitutes a war crime. Israel’s interpretation of international law is contrary to the view that is accepted by broad segments of the international community, which see the settlement enterprise as in violation of this article. Thus, a central concern in Israel is that the ICC will attempt to prosecute political leaders who were involved in building or expanding settlements. Of course, if the ICC indeed has jurisdiction over the settlement enterprise, it would be limited to violations committed since June 13, 2014.
In view of the threshold conditions that limit the ICC prosecutor’s ability to initiate an investigation, especially the principle of complementarity, the way Israel investigates alleged violations of the laws of war during Operation Protective Edge is of utmost importance. During this operation, there were many casualties, the identity of the casualties is a subject of contention (that is, it is not clear whether they were combatants or civilians), and allegations of war crimes were raised with regard to a number of situations, including allegations that damage was done to UN institutions in the Gaza Strip. The question of how these incidents should be investigated is now at the center of public debate. As part of the implementation of the Turkel Commission’s recommendations, a permanent mechanism of inquiry was established in the General Staff, headed by Major General Noam Tibon. Within this framework, a number of teams are collecting data and clarifying facts about exceptional incidents that occurred during the course of Operation Protective Edge.
Very recently, Major General Tibon retired from the IDF, and Major General (Ret.) Itzhak Eitan took over his role in leading the teams.
The Military Advocate General has already decided to initiate a number of investigations by the Criminal Investigations Division of the military police, and his decision in several other cases is pending. The importance of effective investigations of suspected war crimes is clear. The State of Israel is obligated to investigate every suspicion in order to ensure that the IDF waged warfare in accordance with international law. The analysis presented in this article explains why a proper internal Israeli investigation will also protect IDF soldiers from international investigations. The most effective shield against the intervention of external judicial entities, including the ICC, is a proper Israeli investigation that meets all of the conditions of international law. This is the correct way to clarify the legal questions that arose in Operation Protective Edge and to contend with the possibility that the ICC will examine these questions.
Prof. Amichai Cohen is a Research Fellow in IDI’s National Security and Democracy project, and is the Dean of the Faculty of Law at the Ono Academic College, where he is a Professor of International Law.
Adv. Tal Mimran is conducting research as part of IDI's National Security and Democracy project and is the co-author of IDI's Hebrew Terrorism and Democracy Newsletter.