This is the first installment in a five-part series, “Israel Attacks the International Criminal Court, but Its Arguments Fall Flat.”
Within hours of Fatou Bensouda, the prosecutor of the International Criminal Court (ICC), announcing that she was initiating a “preliminary examination“ into the situation in Palestine, Israeli officials launched an aggressive campaign to undermine the court and the Palestinian Authority (PA). News media reported the following elements of this forceful effort by the Israeli government:
- A “public diplomacy campaign to discredit the legitimacy of the ICC’s decision to start an inquiry into what the Palestinians call Israeli ‘war crimes’ in the disputed territories,” as reported by the “Jewish and Israeli news” service, JNS.org. The “media campaign directed against the International Criminal Court in The Hague and its Prosecutor Fatou Bensouda,” was decided by Prime Minister Benjamin Netanyahu, as reported by the Israeli daily newspaper, Haaretz.
- A threat to thwart court process by not allowing Israeli soldiers to face the tribunal, as reported on the Israeli government website.
- A threat to disregard the decision of the court: “Israel will not have its hands tied by anyone, including the ICC,” Netanyahu said, adding that Israeli forces will continue “doing what is necessary to defend the State of Israel and its citizens.”
- A threat to use influence with other countries to interfere with the funding of the court, as reported by the Jerusalem Post.
- An attack on the integrity of the ICC prosecutor for making a decision that Israeli Foreign Minister Avigdor Lieberman said was “solely motivated by political anti-Israel considerations,” as reported by Yahoo News.
- An attack on the legitimacy of the court itself by the Israeli foreign minister as “a body that represents hypocrisy and gives terror a tailwind.” A threat from the Israeli foreign minister that he would seek to “dismantle this court.”
- The freezing of transfer of more than $100 million a month in taxes Israel collects for the Palestinian Authority, in retaliation for the State of Palestine joining the ICC and requesting the ICC inquiry in the first place, as reported by the Jerusalem Post.
The ICC prosecutor, Fatou Bensouda, initiated the inquiry on January 16, 2015, in response to the Palestinian Authority ‘s depositing instruments of accession to the on January 2, 2015, and its declaration the day before that it was accepting the jurisdiction of the court over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.” In her statement, Bensouda said that upon receipt of such a declaration, “and as a matter of policy and practice,” she opens a preliminary examination:
A preliminary examination is not an investigation but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute.
Bensouda said that the preliminary examination would “consider issues of jurisdiction, admissibility, and the interests of justice.” In analyzing whether those criteria are satisfied, she said her office gives “due consideration to all submissions and views conveyed to the Office during the course of a preliminary examination, strictly guided by the requirements of the Rome Statute in the independent and impartial exercise of its mandate.” The Rome Statute is the founding treaty that establishes the rules under which the ICC operates.
Netanyahu Gave Three Reasons for Attacking ICC
The Israeli government campaign was explained by Israeli Prime Minister Netanyahu in a statement he read out from his office on January 17, 2015. Netanyahu argued that (1) Palestine is not a state; (2) the Israeli legal system upholds the highest standards of international law; and (3) Israel was acting in self-defense against terrorism.
Each of Netanyahu’s three reasons appeals to one of the three provisions of the Rome Statute the prosecutor said were under review in the preliminary examination. If true, any one of Netanyahu’s reasons could bring the ICC proceedings to a halt.
(1) If the prosecutor finds that Palestine is not a state, the ICC would not investigate or prosecute for lack of territorial jurisdiction.
(2) If she agrees that the Israeli legal system is independent and impartial, and that its proceedings are in accordance with due process and consistent with a genuine intent to bring the person concerned to justice, cases would not be admissible, and the ICC would halt its work and defer cases to the Israeli legal system for investigation and prosecution.
(3) If the prosecutor agrees with Netanyahu’s point about self-defense against terrorism, she might halt the case under the Rome Statute provision that there are “substantial reasons to believe that an investigation would not serve the interest of justice.” Alternatively, as the prosecutor confirmed in her decision in the Mavi Marmara flotilla case, “self-defense is recognized as a ground for excluding criminal responsibility” under the Rome Statute. So even if the prosecutor does not close the case “in the interest of justice,” Israeli officials could avoid prosecution if the court itself accepts the validity of Israel’s self-defense claim.
Distinct Departure From the Traditional Method
The Israeli government’s attacks on the integrity of the court and its prosecutor, and the punitive action it undertook against the court and against the Palestinian Authority, demonstrated a distinct departure from the traditional method of respectfully presenting evidence and persuasive arguments. One possible explanation is that the ICC prosecutor was indeed wildly deficient in accepting Palestine’s request to open the preliminary examination. Another possible explanation is that Israeli officials recognized that factual or legal support for each of their three arguments was lacking.
The Facts and the Law
The next several installments of this report for Truthout will show that neither the facts nor the law squared with any of Netanyahu’s three arguments. Israeli officials appear to have taken the well-known legal aphorism to the extreme: If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you don’t have the facts or the law, pound the table.
By preemptively pounding the court and its prosecutor, Israeli officials may be implicitly acknowledging their own recognition that they do not have a good case. As the next installments of this article will show, they may be right that their best hope was to delegitimize the court and do their best to stamp it out of existence.
Coming next: The second installment in this five-part series will address the question of whether Palestine can be considered a state for ICC purposes, which would allow the ICC to have jurisdiction over Israelis for war crimes, crimes against humanity and genocide they are alleged to have committed in Palestine since June 13, 2014. When Palestine requested ICC review in 2009, the ICC prosecutor refused to take up the case, saying that the ICC lacked jurisdiction because Palestine was not a state. Stay tuned to learn what changed since 2009, why the ICC prosecutor is now saying Palestine is indeed a state, and how “lack of jurisdiction” no longer precludes Israelis from facing investigation and prosecution at The Hague.