Bridging the Gap: Israel, Palestine and the International Criminal Court

TABLE OF CONTENTS

EXECUTIVE SUMMARY

INTRODUCTION

I. BACKGROUND

A) The Question of Palestinian Statehood (1947-Present)

B) Israeli Opposition, Acceptance and Recognition in 1993

C) Palestine’s Change of Status from “Observer” to “Non-Member State” by the United Nations General Assembly

III.ANALYSIS.

A) The Principles and the Mandates for the ICC

B) ICC and Palestine

C) Israeli Opposition to the ICC

D) Overlapping Interests

IV. RECOMMENDATIONS

A) Israel Should Not Fight the ICC Investigation

B) Palestine Cannot Try Individuals So They Need the ICC

V. CONCLUSION

 

 

EXECUTIVE SUMMARY

In January of 2015 the Prosecutor of the International Criminal Court opened a preliminary investigation into the situation in Israel and Palestine to determine if it may have jurisdiction to prosecute individuals on both sides of the Israeli-Palestinian conflict. Palestine’s diplomatic moves to receive ICC acceptance have changed the relationship between the parties and forced each side to evaluate this move and consider the consequences. Ultimately, despite some legitimate Israeli concerns, the ICC provides a useful mechanism for advancing the two countries closer to a situation where there can be the two elements necessary for peace, security and normalization: an end to impunity, and institution-building.

History:

On 22 January 2009, Ali Khashan acting as Minister of Justice of the Government of Palestine lodged a declaration pursuant to article 12(3) of the Rome Statute that accepted the exercise of jurisdiction by the ICC for “acts committed on the territory of Palestine since 1 July 2002.” Under Article 15 of the Rome Statute, the Office of the Prosecutor began a preliminary examination to determine if there is “a reasonable basis” to proceed with an investigation. The first step was to determine whether Palestine met the preconditions to the exercise of jurisdiction under article 12 of the Rome Statute, namely whether Palestine constituted a state. The OTP determined that “in instances where it is controversial or unclear whether an applicant constitutes a ‘State’, it is the practice of the Secretary‐General to follow or seek the General Assembly’s directives on the matter.” While the UN Charter contemplates full member status via the UN Security Council the ultimate competence for determining the term “State” within the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of General Assembly.

While the OTP acknowledged that Palestine had been recognized as a State in bilateral relations by more than 130 governments and by certain international organizations, including United Nations bodies, the status granted to Palestine by the United Nations General Assembly was that of “observer”, not a “non‐member State”. This was determinative for the purposes of article 12 and the OTP determined Palestine was not a State given its status at the UN.

In 2015, after the UN Security Council, facing a U.S. veto, was unable to resolve the matter of submitting Palestine to the GA for consideration of full member status, Palestine end-routed the UNSC by going directly to the General Assembly and asking for a change in status from, as the OTP indicated was determinative, “observer” to a “non‐member State.” With that change in status, Palestine again attempted to accede. The document was accepted by the UNSG and Palestine became the most recent state party to the Rome Statutes.

Analysis:

While a legalistic argument can be made that the OTP made an incorrect decision given the failure of Palestine to meet the conditions of the Montevideo Convention, Palestine contends that its inability to do so is based on (arguably illegal) Israeli action. Regardless, the determinative element not met by Palestine in 2009 was but one component of the Montevideo Convention: recognition. Having that status changed, the OTP has the discretion of determining if the conditions for statehood have been met under the Rome Statutes. This has been confirmed by the Court and therefore the discussions on Palestinian statehood, minimally as they relate to the ICC, are moot.

What is left to discover is how the move by Palestine serves the interests of both states. Since the OTP accepted Palestine and began an investigation, Israel has begun a media and political campaign within Israel against the Court. It has limited its work with the Court, doing so only to continue to mount its defense against the original acceptance of Palestine by the Court. However, beyond what may be over-reactions due to sensitivity over the potential consequences of such an investigation, legitimate or not, the move by Palestine actually serves the interest of Israel and Palestine alike for two main reasons: 1) each state has international obligations under human rights and other international conventions with which neither state is able or willing to comply and; 2) that the ICC, through its principle of complementarity, would only be able to hear cases that either party was unwilling or unable to prosecute thereby forcing each state to build or strengthen its local institutions to again regain a society based on rule of law, rather than rule by it.

The entrance of the ICC into the fray does not, contrary to Israeli and American objections, hinder the peace process, it actually reinforces it. First, it provides an additional argument for Palestine to assert itself as a recognized state, with the rights and obligations that go with such a determination. It allows for Palestine to meet Israel as an equal and gives it additional international support for its continued diplomatic efforts with Israel. The ICC also reinforces the peace process by establishing an independent mechanism to adjudicate cases which have thus far spurred the impunity with which decisions are made and prohibit justice for such crimes to ever be achieved by either side. This impunity infects the situation and paralyzes it. The ICC mandate of fighting impunity is the exact prescription for this disease and provides the best means of ending the system of impunity.

Furthermore, the ICC’s principle of complementarity should ease the minds of Israeli officials concerned with impositions on sovereignty. The complementarity principle rests on the notion that it is states who have the first obligation to prosecute alleged criminals, and only when that is unavailable, will the Court intercede. Article 17 states that as a prerequisite for jurisdiction over a case, the ICC must determine that a state is either unwilling or unable to prosecute alleged perpetrators. This foresees two situations which are both represented in the Israeli/Palestinian context. First, Palestine’s judicial system is not capable of prosecuting its alleged criminals as the state institutions are weak, and much of the Palestinian Authority’s efforts are expended to mitigate the damage. In addition, they work in an extremely hostile environment to be able to establish even basic institutions. Israel, on the other hand, as the more powerful party, has a strong legal system in place, but it has shown that it is unwilling to prosecute alleged perpetrators. This may be a result of its lack of codification of the rules of war into its civilian and military legal system, lack of internationally legitimate prosecutions of alleged perpetrators, the often reduced sentences received by those who are convicted, and/or the total lack of will of prosecuting high level officials because of a dearth of judicial will or illegitimate legal protections within Israel.

Ultimately both sides have serious issues that the ICC can step in to correct and can, through its Trust Fund of Victims, provide additional assistance to help both sides establish or strengthen their legal institutions. This would go a long way to ending impunity by reinvigorating the rule of law, but also to ensure that each state (now that both are considered such) fulfill its international obligations under human rights and international humanitarian law to prosecute or extradite offenders of international law.

Recommendations

Obviously Palestine has accepted that it may be subject itself, as it wishes to subject Israel, to investigations and prosecutions by the ICC. This overture is a recognition of its obligations as a member of the international community of nations, but also that its institutions are not sufficient to achieve these goals. Palestine ought to recognize, as it appears is the case that the international community can provide it with necessary support. Israel too has obligations that it has agreed to be subject to but also preserves a desire to retain the rights of a sovereign nation that must be protected. However, since it appears to be using the latter to avoid the former, allowing an independent institution to assist it in finding the right balance between these competing goals is in Israel’s interest if it wishes to step out of the spotlight put on the area by the continuing conflict and end what it sees as an international campaign against it. As someone who suggests they have been slandered, the only means by proving such, is to establish the falsity of the claims, and Israel can do so at the ICC. All in all, for both parties, the ICC provides the most direct, sufficient and continuing means for both states to begin a new process of peace by law, rather than war.

I.INTRODUCTION

On January 22, 2009 the Minister of Justice of the Palestinian National Authority (“PNA”) Dr. Ali Khashan visited the ICC and met with then-prosecutor Luis Moreno-Ocampo. In addition to the meeting Dr. Khashan also lodged a declaration pursuant to Article 12(3) of the Rome Statutes with the Registrar of the Court[1] accepting jurisdiction back to 2002 when the ICC temporal jurisdiction began and the statutes came into force.[2] Prior to that meeting, the Office of the Prosecutor (“OTP”) received 213 Article 15 communications regarding the situation in Israel-Palestine.[3] The prosecutor promised that it would examine the issue of whether said declaration would meet the statutory requirements of jurisdiction.[4] This action began a new chapter in the sorted history between Palestine and Israel. Ultimately, the ICC accepted Palestine as a State Party to the Rome Statutes in 2013 and the new prosecutor, Fatou Bensouda, opened a preliminary examination.[5] This action by Palestine raises legal questions surrounding the Court’s analysis of the sufficiency of Palestinian statehood (a precondition for signature and accession to international treaties) claims, the divergent interest of Palestine and Israel regarding the legality of their actions during conflicts, the legitimacy of the court, and ultimately the wisdom of such a move in such a volatile situation.

Part II of this paper reviews the relevant background behind the engagement of the Palestinian authorities with the ICC, beginning with the declaration deposited by Dr. Khashan. It also reviews Israeli opposition to the court in general, and specifically its objections to the acts of Palestine in accession to the Rome Statutes. Finally, with those divergent views in mind, the section concludes with an appraisal of the decision by Prosecutor Bensouda to ultimately admit the state of Palestine as a State Party to the Rome Statutes. Part III analyzes the position of Palestine and Israel regarding the court, discusses the interests of each in relation to it, and also whether or not those positions are legally and/or politically justifiable. Part IV recommends that Palestinian accession to the ICC, given its statutory system and the notion of complementarity, actually serves the genuine interests of each party, specifically the need to end impunity of those alleged to have committed crimes under the Statute by mandating prosecutions of alleged criminals on both sides. Furthermore, it helps facilitate future dialogue between the parties by helping to add to the growing number of international bodies who have legally determined that Palestine is a state which sets the relationship between parties on a new international footing for future negotiations and therefore should not be opposed by either side. This paper concludes that the ICC is a proper venue for the situation in Israel/Palestine because of its complex nature and long duration, working with the Court serves the interests of each side by ending impunity and facilitating prosecutions at the domestic level, and should therefore not be opposed by either side and may in fact lead to a new footing for international negotiations.

II.BACKGROUND

A.    The Question of Palestinian Statehood (1947-Present)

United Nation Security Council (“UNSC”) Resolution 242, also known as the “Land for Peace” deal called for the creation of two states in the former British Palestinian Mandate which had been split in to by the 1947 declaration of the state of Israel and subsequent wars in 1949 and 1967.[6] The Palestinian Liberation Order was granted the precedent, rather than charter, based “observer status” in 1974.[7] As an observer, the PLO was invited to participate in General Assembly sessions and conferences of other UN bodies.[8] In 1988, the designation of “Palestine” officially replaced the “Palestinian Liberation Order” within the UN system.[9] In 1998, the General Assembly extended Palestine privileges that had previously been exclusive to member states, including the right to participate in the general debate at the beginning of each General Assembly, and the right to cosponsor resolutions.[10] According to the UN, the decision “upgraded Palestine’s representation at the UN to a unique and unprecedented level, somewhere in between the other observers, on the one hand, and Member States on the other.”[11]

Since 1967 areas of Palestine have been occupied, controlled or administered by Israeli military and civilian leadership.[12] Though Israel received nearly instant recognition by several powerful states and the U.N., Palestine has not been so lucky to have such robust support for its own status.[13] Surely, the creation of an independent Palestine is rhetorically supported internationally, and according to polling data, even enjoys significant support among the Israeli population. Still, Palestine failed to achieve full UN membership in 2011. Instead, Palestinian Authority (PA) President Mahmoud Abbas was able to secure formal recognition in the form of a “non-member state” at the General Assembly on November 29, 2012.[14] Only Palestine and the Vatican currently hold this status.

In September 2011, Abbas gave a speech in which he claimed that given the lack of progress in peace talks and continued settlement building in the West Bank and East Jerusalem, achieving international statehood recognition would bolster the Palestinian position, make it a member of the international community alongside Israel and provide a path forward on a level playing field.  The compromise in concession to non-member status came after Palestine attempted to gain support for a vote in the UNSC referring to the General Assembly (“GA”) a vote on full Palestinian membership into the U.N. but failed to get the necessary support on a resolution to do so. Instead United Nations General Assembly Resolution 67/19, inter alia, granted Palestine non-member status.[15]   Since then Palestine has acceded to at least fifteen multi-lateral treaties only open to states[16] including the Rome Statutes of the International Criminal Court (“ICC”).

B.     Israeli Opposition, Acceptance and Recognition in 1993

Israel’s opposition to a Palestinian state began during the Palestinian mandate system. With the nod of approval from the mandate holder, Britain, via its famous Balfour Declaration, Zionist Jews from around the world began preparations for the creation of a Jewish state in Palestine.[17] Doing so invariably put two peoples, with their historic rivalry, on a collision course. The declaration of the State of Israel in 1948 did not alone preclude a Palestinian state, but the consequence of the Arab invasion and Israeli victory set Israelis and Palestinians down the road that they have travelled for more than half a century.

In reality the notion of two-states in Judea began after the 1967 war which, unlike 1949, established Israeli permanence and reoriented many states understanding of the role Israel would continue to play.[18] Nations that had sworn themselves to the principal of Israeli destruction pivoted to acceptance of its right to exist and its power within the region.[19] However, Israeli land gains made during the 1967 war would be one of the main flashpoints of disagreement between Palestinians and Israelis from then out.[20] The 1967 borders remain a mainstay of Palestinian proposals regarding territorial solidification.[21] Despite President Obama confirming the 1967 borders standard,[22] Israel does not appear likely to consider a simple pre-67 border resolution as a resolution at all.[23] One of the main consequences of the ’67 war was the splitting of the territory of Palestine into two, non-contiguous geographic areas: the West Bank and Gaza Strip.[24]

That split in geographic area further emboldens Israeli claims of a lack of prerequisites for statehood under international law. In 2008 when Hamas was elected in Gaza, while Fatah remained in control of the West Bank, the attempt at creating a unity government failed and there was a conflict between Fatah and Hamas in Gaza, ultimately leading to Hamas’ consolidation of power in the Strip.[25] With that, a formerly united Palestinian authority was divided, the two parts of the Palestinian territory left in control of two different governmental groups. This division only adds to the Israel claim that Palestine does not retain the basic criteria for state sovereignty. Yet, despite this situation in Palestine, the United Nations has made a different determination.

C.     Palestine’s Change of Status from “Observer” to “Non-Member State” by the United Nations General Assembly

Palestine’s bid for international recognition was a much more difficult task than Israel’s beginning in 1974 when, along with its admission the UNGA as an observer state, Palestine was admitted to UNESCO as an “observer state.”[26] The issue of becoming a fully-fledged member of UNESCO began in 1989 but was tabled until 2011 when it was finally admitted as a full member of the heritage organization. This action was no doubt bolstered by PA attempts to get full UN member status at the same time.[27] However, in order to get full membership into the UN, Article 4 mandates that the UNSC must approve the application of a state seeking membership and make a recommendation to the GA.[28] Before the decision was taken up by the UNSC the U.S. Senate passed S.Res. 185 calling on President Obama to veto the motion and threatening a withdrawal of aid to the West Bank if the Palestinians followed through on their plans.[29] This, along with a statement from then UN ambassador Susan Rice, shifted the Palestinian position from seeking full member status to striving for “non-member” state status thereby bypassing the UNSC and going to the full GA.[30]

On Thursday, November 29, 2012, in a 138-9 vote (with 41 abstentions and 5 absences),[31]  General Assembly resolution 67/19 was adopted, upgrading Palestine to “non-member observer state” status in the United Nations.[32] The change in status was described by The Independent as “de facto recognition of the sovereign state of Palestine.”[33] Indeed, on January 3, 2013, Abbas signed a presidential decree 1/2013 officially changing the name of the ‘Palestinian Authority’ to the ‘State of Palestine.’[34]

III.ANALYSIS

In order to understand the move by Palestine to begin its diplomatic maneuvers, culminating in its accession to the Rome Statutes, one must understand the role of the ICC in international law and relations and how that role could be of particular service to the conflict between Israel and Palestine. With that understanding one can review the interests of both parties in relation to the ICC and analyze the validity of the claims made by each party. Doing so will bring to light a single conclusion: the admittance of Palestine to the ICC would be in the legitimate interests and serve the obligations of both sides. To square this circle one must understand both the stated policies of the two states, but also what and how each side can live up to their international obligations and how the ICC can assist each side to fulfill these mandates and ultimately end the conflict.

A.    The Principles and the Mandates for the ICC

The ICC is, in some ways, the final act of a play which began in the wake of World War II. After the mind-boggling carnage that war brought to the world stage, the victors sought to firmly establish a new principle in international law: individual criminal responsibility for acts committed as a state agent which were formerly understood to be state-based crimes.[35] At Nuremburg and Tokyo, the top criminals of the Axis forces were set before the first international criminal tribunal.[36] There, the court set out a new understanding of personal culpability for decisions taken as a member of government during war or periods of political turmoil.[37] Its convictions served as the plaster that time would set and future events would demand be made more robust.

During the frigid decades of the Cold War, little work was undertaken by states or the UN, though the possibility for such tribunals was no less logically valid given the crimes committed during that period of human history.[38] Still, when cracks became holes and the edifice of the Cold War, represented most blatantly by the graffitied Berlin Wall, was finally demolished down with it came another wall that prevented the establishment of international tribunals such as Nuremburg since 1945. The war in Yugoslavia in the mid-1990s provided an opportunity to those interested in advancing international criminal law to finally advocate for a new version of the Nuremburg trials. While the conflict raged, the UNSC created the International Criminal Tribunal for the Former Yugoslavia to try the leaders of the parties to the conflict.[39] It followed the same model when it created a tribunal for the genocide in Rwanda.[40]

However, investigator of Nazi war crimes and Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, Benjamin B. Ferencz’s call for a permanent international criminal tribunal[41] was only picked up by Prime Minister of Trinidad and Tobago A. N. R. Robinson in June 1989 to tackle the international nature and effect of the international drug trade.[42] In 1994 the ILC published its draft statutes for the ICC and after two initial conferences a final conference was held in Rome, Italy in 1998.[43] The conference was ultimately a success, and on July 17, 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The US and Israel were among the seven countries that voted against the treaty along with China, Iraq, Libya, Qatar, and Yemen.[44] Following 60 ratifications, the Rome Statute entered into force on July 1, 2002.[45]

For the purposes of the Israeli/Palestinian conflict two mandates and principles of the ICC are of prime importance. Those are the principles of ridding impunity for international crimes and complementarity. These principles allow each party to fulfill its international responsibilities to prosecute or extradite criminals but also retain independence and sovereignty. Indeed, while both states are keen to maintain their sovereign control over their territories and citizens, they have a competing obligation to prosecute violators of international law. Where these two competing interests clash, the ICC is perfectly capable of stepping into the fray as an impartial third party in which each side can turn to resolve a certain number of unresolved issues.

  1. Ending Impunity

The preamble of the Rome Statutes puts forward the principle of ending impunity straight away: “Determined to put an end to impunity for the perpetrators of the most serious crimes of concern to the International Community as a whole and thus contribute to the prevention of such crimes.”[46] The ICC fights impunity by ensuring that the most severe crimes do not go unpunished, and assists in the establishment of the rule of law by promoting respect for the obligations under international law.[47] Therefore the crimes within the jurisdiction of the Court are major international crimes (genocide, crimes against humanity and war crimes)[48] and the ICC remains a court of last resort with the mandate to prosecute individuals only when national jurisdictions are unable or unwilling to do so.[49] As stated by the then United Nations Secretary-General Kofi Annan in 2004, the ICC makes this impact by “putting would-be violators on notice that impunity is not assured.”[50] If the ICC were to be a powerful risk to policymakers, a public announcement that the ICC is following a situation provides a strong signal to potential perpetrators that they cannot escape liability for their actions by traditional principles or modus operandi protecting officials.[51] Additionally, such a public announcement not only puts potential perpetrators on notice, but also draw local as well as international attention to the situation which may step in and persuade relevant national organizations or other stakeholders to take necessary action to defuse the crisis.[52] Evidencing this affect, a minister from one of the States Parties to the Rome Statute told the UN Chronicle that the possibility of an ICC intervention was a major factor that helped prevent large-scale violence after a disputed election.[53]

  1. Complementarity

Article 17 of the Rome Statutes puts forth the principle of complementarity.[54] Indeed, “complementarity is one of the foundational principles of the Rome Statute system. What was envisioned by the drafters of the Rome Statute was not simply a self-standing Court, but rather a comprehensive system of international justice, where the duty on States Parties to investigate and prosecute international crimes is clearly reinforced.”[55] In order to fulfill this role, the ICC was made a court of “last resort” that can step in where national jurisdictions have failed to address international crimes.[56] The Bureau of the ASP’s report on complementarity made clear the need to enhance the preparedness of national jurisdictions through positive complementarity[57] and to remain steadfast that it is the primary responsibility of States to investigate and prosecute serious international crimes.[58] Furthermore the report made clear that it is the obligation of States Parties to the Rome Statute to, with assistance from the ASP Secretariat, strengthen national jurisdictions by facilitating the exchange of information.[59]

These issues were framed in a panel discussion with eminent panelists from national jurisdictions, international and regional organizations and the International Criminal Tribunal for the Former Yugoslavia. The Bureau’s report made several recommendations, including:

i) that States Parties reaffirm that national jurisdictions have the primary responsibility;
ii) that States, the Court and other actors strengthen the principle of complementarity by encouraging national proceedings where relevant as a means to bridge the impunity gap;
iii) that States Parties should consider the need for further measures at the national level in combating impunity and as appropriate and in cooperation with the Court examine ways in which domestic jurisdictions can be further enabled to deal with the most serious crimes;
iv) that the Assembly should establish a designated function within the Secretariat of the Assembly of States Parties, tasked with facilitating the exchange of information aimed at strengthening domestic jurisdictions.”[60]

 

B.     ICC and Palestine

When it received a 12(3) declaration (referencing the Rome Statutes accession article)  lodged by the Palestinian National Authority in January of 2009, the Prosecutors Office opened a preliminary examination of the Palestinian situation.[61] Prosecutor Ocampo concluded in April 2012 that, after thorough analysis and public consultations, Palestine’s status at the United Nations (UN) as an “observer entity” was determinative since entry into the Rome Statute system is through the UN Secretary-General (UNSG) who acts as treaty depositary.[62] The Palestinian Authority’s “observer entity,” as opposed to “non-member State” status at the UN, at the time meant that it could not sign or ratify the Statute and therefore, the ICC had no jurisdiction as Palestine did not possess the necessary standing.[63] This situation changed in November 2012 when the UN General Assembly (UNGA) adopted Resolution 67/19 granting Palestine “non-member observer State” status in the UN.[64] After this change, the Prosecutor reviewed the legal implications of this development and concluded that, while the change in status did not retroactively validate the previously invalid 2009 declaration, pursuant to articles 12 and 125 of the Rome Statute Palestine would be able to accept the jurisdiction of the Court from November 29, 2012 onward.[65]

On January 2, 2015, Palestine deposited its instrument of accession to the Rome Statute with the UNSG.[66] As outlined in the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, “the Secretary-General, in discharging his functions as a depositary of a convention with an ‘all States’ clause, will follow the practice of the [General] Assembly in implementing such a clause ….”[67] The practice of the UNGA “is to be found in unequivocal indications from the Assembly that it considers a particular entity to be a State.”[68] It was armed with this background that the UNSG, acting in his capacity as depositary, accepted Palestine’s accession to the Rome Statute, and Palestine became the 123rd State Party to the ICC and that Palestine’s declaration had been transmitted to the Prosecutor for her consideration.[69]

Since the focus of the prosecutors inquiry into Palestine’s ability to accede to the Rome Statute has consistently been the question of Palestine’s status in the UN, given the UNSG’s role as treaty depositary of the Statute, the UNGA Resolution 67/19 is therefore determinative of Palestine’s ability to accede to the Statute pursuant to Article 125, and equally, its ability to lodge an article 12(3) declaration. The Prosecutor determined that the change of status was sufficient for accession and opened an investigation based on those findings.[70]

C.     Israeli Opposition to the ICC

It has already been noted that Israel was one of seven states to vote against the Rome Statutes itself.[71] In doing so it first lodged its concerns regarding the potential political nature of or use by the court.[72] However, at the same time, Israel has remained a supporter of the court rhetorically.[73] But rhetoric only goes so far. Israeli action, as opposed to rhetoric, evidences its long suspicious relationship with the court, culminating in its ultimate rejection.[74] The Israeli foreign ministry has repeated and increased, especially after the accession of Palestine, its less supportive rhetoric regarding the ICC.[75] Reviewing these position shows an unfortunate truth for Israel that its position is neither logically justified but also runs counter to its international obligations.

First, Israeli statements and policy decisions regarding the ICC have been, at least since the mid-1990s, all over the map. Though Israel was a participant in the negotiations that created the Rome Statutes, it ultimately voted against it.[76] Explaining Israel’s negative vote, the head of Israel’s delegation, Judge Eli Nathan, pointed to the inclusion of the crime of indirect transfer of population to occupied territories as an example of politicization targeting Israel that it could not accept.[77] Following the lead of the U.S., Israel submitted a signature to the treaty showing the intent to ratify early after Rome, only to “unsign” it in 2002.[78] That decision came with an explanation by the Israeli Foreign Ministry which outlined their concerns especially, inter alia, the fear of the politicization of the Court, disagreement about the nature of and form of international law applied at the court and the potential for expansion of scope and scale, the addition of the crime of “the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies” which is seen as being directly oriented towards Israeli settlements in the West Bank, a list of crimes that does not contain terrorism or drug trafficking,[79] concerns about the seeming inability of an Israeli judge to be appointed by the court, worries that the power of the prosecutor is too great and may easily lead to further politicization.[80]

It is important to recall that Israel has suspicions and is weary of many international institutions as it feels it is unfairly treated by regional and international institutions including the U.N.[81] To make this claim, Israel suggests that the overwhelming number of General Assembly resolutions, attempted and successful Security Council resolutions, UNHRC admonishments, negative international NGO reports and an unfavorable international media system, outside the United States, all combine to form a web of deformations, misapplications and illogical decisions from various actors with nakedly political positions against the actions, if not the existence, of Israel itself.[82] However, regarding the ICC, Israel makes the claim that when it signed the treaty in 2000, it was an “indication of its hope that the court would remain true to the goals of its founders.”[83] Apparently between 2000 and 2002, when the Statutes actually went into force, Israel received no guarantees regarding its concerns and decided the month before it entered into force, to signal it would not be legally bound by it.[84] While it retains the sovereign right to object to an international treaty, Israel’s objection to the Court, however valid a priori, cannot be justified given the time period for which they would have been able to verify if those claims were legitimate.[85] Israel may maintain the same general concerns regarding the court now that it has been functioning for more than a decade, but such claims would have to contend with the actual work of the court.

When the ICC accepted the Palestinian document of accession and opened a preliminary examination into the Israeli/Palestinian conflict, Israeli rhetoric and policy against the court rose. Observers noted that this positions come from a combination of two sources: “the government knows that the Israel Defense Forces committed atrocity crimes in Gaza (and perhaps in the construction of Israeli settlements in occupied territories) and … the government believes that institutions like the ICC are so biased against Israel that they will inevitably be unfairly targeted.”[86] For instance in January 2015, Israeli Foreign Minister Avigdor Lieberman declared that any decision by the ICC to investigate the alleged crimes was “solely motivated by political anti-Israel considerations” and that Israel would seek to “dismantle this court, a body that represents hypocrisy and gives terror a tailwind.”[87] Lieberman went so far as to state that the ICC should be out of business altogether.[88] Around that time Prime Minister Netanyahu launched a media campaign against the court.[89] The government is not totally united in this campaign against the court, fearing that it will, like U.S. attempts to hinder the court, ultimately fail and lead not to a diminishing of the court but of isolating Israel further.[90] Indeed, “Israel’s fury,” rather than its cool acceptance of its obligations vis-à-vis the court, “gives credence to the view that the court is both a deeply relevant institution in international politics and that it is not simply a tool of Western powers.”[91]

Ultimately, in July of 2015, Israel did begin to make contacts with the court, but for a limited purpose: to make its position clear – the ICC does not have any authority to hear Palestinian complaints on the matter.[92] Israeli officials made it clear that Israel was still refusing to cooperate with the ICC’s preliminary investigation.[93] The position of Israel, like any other nation who does not support the ICC, runs afoul of its international obligations to prosecute international criminals.[94] Israeli prosecutions of IDF soldiers for violations of the laws of war is rather impotent.[95] While Israel has enacted clear laws to prohibit and punish the crime of genocide, the Israeli legal system does not contain legislation forbidding war crimes and setting corresponding punishments.[96] This violates Article 146 of the Fourth Geneva Convention, to which Israel became a party upon becoming a state itself, which establishes the duty to enact suitable legislation to allow the investigation, prosecution, and penalization of anyone responsible for such grave breaches of humanitarian law.[97] Additionally, Israeli Military Court’s Martials do not use or prosecute soldiers for internationally legally recognized obligations, in fact they are silent on such obligations.[98] Additionally, the sentences given to those found guilty of what would be war crimes are often mitigated by explanatory circumstances and, since the charges are silent regarding the status of victims under international humanitarian law (whether they are “protected” persons under the Fourth Geneva Convention) which goes against the obligations of Israeli to effectively prosecute its own soldiers.[99] In 2009, after the 2008 conflict in Gaza, former Prime Minister Olmert stated, “commanders and soldiers that were sent on the task in Gaza should know that they are safe from any tribunal and that the State of Israel will assist them in this issue and protect them as they protected us with their bodies during the military operation in Gaza,” effectively stating that no prosecutions would be undertaken against IDF soldiers.[100] However, the Military Advocate General investigated over 150 wartime incidents and launched 47 criminal investigations into the conduct of IDF personnel, but very few of them were indicted and the sentences for the crimes indicted fall well below international standards.[101]

D.    Overlapping Interests

The Palestinian bid for ICC jurisdiction, though perhaps an initial shock, would serve the interests of both sides as it takes into account both the objectives and intentions of each party and hoists it into compliance with each party’s international obligations. The first of these is that each side is desirous to see those who committed crimes on the other side prosecuted. Given the disunity in governance between the West Bank and Gaza, the fragile (if not non-existent) legal system in Palestinian territories because of weak institutions partially because of the occupation by Israel, and the lack of will of leaders to bring prosecutions against known war criminals, Israel is legitimately concerned that Palestinian crimes and criminals have no forum for internationally recognized crimes to be prosecuted in Palestine thereby granting impunity to perpetrators. At the same time, Israel, while enjoying a functioning and stable judiciary, has failed to live up to its international obligations regarding the prosecution of international criminals. It continually denies the state of occupation, and refuses to conduct a transparent, internationally recognized investigation into the leadership for policy decisions regarding the conduct of military operations or continued settlement building and relocation of Israelis to said settlements erected in West Bank territory. This, like the Palestinian situation, creates impunity especially for Israeli policymakers and leading figures tasked with policy creation and implementation.

These failures on both sides are exactly the kind of institutional failure that the Rome Statutes envisioned and is tasked with rectifying. Under the Court’s complementarity principle, states retain the ultimate obligation for prosecution of serious international crimes, but if they are unable (as Palestine is) or unwilling (as Israel is) then the court may have jurisdiction as an independent body to adjudicate the matter and thereby assist each party to the conflict in assuring that the meet their obligations under international law and under internationally recognized standards and practices.[102] While Israel may be concerned about who the ICC may ultimately charge, and the Palestinians seek to make the prosecutions Israeli-centered, each side must give something to get something. For the Palestinian, getting jurisdiction over Israeli soldiers and officials at the ICC may be the only means for them to seek a form of justice and end the impunity which promotes Israeli actions and decisions, but it also means being subject to the jurisdiction themselves and leaves open the possibility of high-level indictments. Israel, while being subject to unprecedented scrutiny with criminal implications for high ranking officials, would also be able to seek investigations and prosecutions of those they believe are responsible for international crimes including acts of terrorism which, though there is no specific crime of terrorism, would be covered by several other enumerated acts that constituted the crimes under the Rome Statutes. While no doubt a bitter pill for each side to swallow, the bitterness comes not from a genuine injustice that may befall one side or the other, but because the conflict has operated in a seeming vacuum of international law in which impunity, rather than justice, reigns supreme. Given each side’s intransigence on domestic prosecutions, the ICC is the internationally recognized body which has been set up to step in under just such situations.

International prosecution of individuals on both sides of the conflict would have an effect on more than just the system of impunity each side has constructed. The walls of impunity around officials on both sides is a key component to understanding their goals, decisions, policies and actions. Breaking down those walls would itself modify decision making on both sides by adding in a new element to the process: threat of international prosecution. When policymakers on each side are under the assumption that, given the facts on the ground, they will be immune from potential negative consequences of their actions, they have no incentive to comply with the law. Therefore, decisions regarding violations of the laws of war and/or basic human rights obligations which carry with them the real potential for individual culpability, the tendency for the form of flouting of international law we now see in the Holy Land will likely decrease dramatically.

If this threat is made to remain over the heads of policymakers on both sides they will have the incentive to ensure that their decisions and actions taken pursuant to those decisions, at minimum, do not violate the law. This could provide a new opening for dialogue and reconciliation if it was able to cool the conflict by preventing the exacerbation of tensions by the commission of internationally recognized crimes on both sides. It provides Israel with the incentive to modify its legal system to comply with international legal standards and its obligations under the Geneva conventions and may provide assistance to Palestine in constructing an effective judicial system. The institution of legitimate and effective means of establishing the rule of law in both areas, at least on the issue of international crimes may allow for each side to accept the other as a good-faith actor and may assist in further negotiations as equals, rather than division over the continued impunity for bad actors.

Though such positive results from an ICC investigation and prosecutions may take years to fully cement into the civil and political societies of each side, more immediate results can be predicted. There are still unanswered questions which manifest themselves in disagreements between Israel and Palestine on key issues such as whether Palestine is a state, whether Israel is occupying the West Bank under international law, what are the rights and obligations of each actor and do the acts perpetrated by both sides amount to crimes under international law. Although there have been some international decisions answering these questions, all of them must be answered by the Court. Therefore, the Court can close the book on these outstanding disagreements by well-reasoned and legally sound decisions which set forth the protections and obligations for both actors and determine what actions are and are not prohibited in any future armed conflicts between them.

Israel has claimed that it stays true to the object and purpose of the Rome Statutes, but states that it remains unconvinced that the court is sufficiently impartial and independent. Those concerns should be mitigated by the International Bar Association’s 2011 review of the fairness of the ICC which concluded that, although faced with novel and particular challenges, the ICC retains strong standards and has a number of policies and institutional frameworks to ensure the fair trials rights of the accused.[103]  The claim of politicization of the Court is not new and has been levied by some African states, notably Kenya, in recent years, but for Israel, the notion takes on a new form and meaning. For African states, the politicization of the Court represents a global north/south divide in which the global south, namely Africa, bears the brunt of the Court’s efforts and decisions thus far, while powerful states in the global north (Russia, U.S., China) are wholly out of the reach of the Court as those states hold veto power at the UNSC, the only institution that can refer a case to the ICC of a non-state party to the treaty. Israel, in contrast, sees any ICC action against it as just the most recent example of an international campaign, namely by other Middle Eastern and North African states but also critical European states such as France, to delegitimize Israel and its campaign against terrorism.

There is no doubt that the international community has been keenly focused on the Arab/Israeli conflict. While one may be inclined to see this focus as a campaign against Israel, but that assumes that Israel is not deserving of said focus. At the same time, one may argue that this focus is precisely because the conflict engenders not only strongly held religious and political convictions, but its scale, in terms of timescale, number of conflicts, on-going problems between the parties, inability for either side to meet several attempts at reconciliation, and the costs of such factors. Israel is the more powerful actor, and retains significant support via the United States in international affairs. Palestine is the weaker force whose institutions have been handicapped by its relation with Israel and its inability to consolidate and enforce its sovereign control. These have understandably focused the attention of the international community on Israel, as the state which has the ability to make significant policy changes which would allow the Palestinians the space to erect and enforce its own methods of control. This does not, however, give Palestine a free pass for its role in the continuing and deepening of the conflict, but rather reflects the practical need for the international community to find the actor with the means and methods of taking concerted action, while maintain that it is not the obligation of the state of Israel alone, but that it must take the first steps towards cooling the heated situation.

There also international interests to take into account regarding the situation in Israel. Obviously, and as the UNGA and UNSC have reiterated, the international community has an interest in seeing the conflict end. At the same time the international community has an interest in adding international weight and legitimacy to the Court. As this conflict is one of the longest running and involves a number of principles and obligations of international law, the ICC provides a mechanism for conflict management and post-conflict reconciliation.

IV.RECOMMENDATIONS

A.    Israel Should Not Fight the ICC Investigation

What understanding one can find in the Israeli campaign against the ICC, no justification can follow. The concerns that the Foreign Ministry enunciated in 2002 have been shown to have not come to fruition and if Israel is legitimately concerned with politicization or other issues with the court, it can rework its legal system to come in line with international standards and begin a campaign of prosecutions of potential criminals so to avoid ICC action under complementarity. Israel’s continuing opposition to the court only serves to further isolate it in the world community and forces it to stand with other states who have flouted the jurisdiction of the court which is becoming a less and less justifiable the more the court shows its independence, strong rules of procedure and the protections thereof, and its ability to resist political pressure.

B.     Palestine Cannot Try Individuals So They Need the ICC

On the Palestinian side of the equation it is not merely the lack of will, though that may in fact be true, it is more an issue of capacity. Without an institutional framework to be able to try the charged, whatever will Palestinian authorities have is moot. Additionally, the ICC can provide, through its Trust Fund for Victims, institutional capacity building projects to assist the Palestinian authorities on the ground. The combination of the imposition of a legal regime where none exists and the capacity building projects that could be undertaken by the TFV could provide a bedrock for the building of new Palestinian judicial system and therefore add to the decisions making calculus, the potential for judicial action as a result. The complementarity principle allows for both sides to get what they want: Israel can retain sovereignty, so long as it is willing to prosecute those alleged to have committed crimes, but it allows for prosecutions of Palestinian actors, including Hamas.

V.CONCLUSION

Palestinian ascension to the ICC will help both sides get what they want: a means to end the conflict, seek justice, retain sovereignty and become equals in some forum. This will allow both sides to, in some ways, be fairly compared and contrasted, understand each other in a different forum and, through the course of a justice process, may open themselves up to future dialog and a resurgent peace process.

FOOTNOTES

[1] ICC, Declaration of the Palestinian National Authority accepting to the jurisdiction of the ICC, available at: https://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279777/20090122PalestinianDeclaration2.pdf.

[2] UN General Assembly, Rome Statute of the International Criminal Court, (1998) (Hereinafter Rome Statutes).

[3] The Prosecutor of the International Criminal Court, Visit of the Minister of Justice of the Palestinian National Authority, ICC-OTP-20090122, Jan. 22, 2009 available at: https://www.icc-cpi.int/NR/rdonlyres/979C2995-9D3A-4E0D-8192-105395DC6F9A/280603/ICCOTP20090122Palestinerev1.pdf

[4] Id.

[5] The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine, ICC-OTP-20150116-PR1083, Jan. 16, 2015 available at: https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1083.aspx

[6] UN Security Council, Resolution 242 (1967) of 22 November 1967, S/RES/242 (September 22, 1967).

[7] UN General Assembly, Observer status for the Palestine Liberation Organization, , A/RES/3237 (November 22, 1974).

[8] Id.

[9] UN General Assembly, Question of Palestine, A/RES/43/177 (December 15, 1988). (“Decides that, effective as of 15 December 1988, the designation “Palestine” should be used in place of the designation “Palestine Liberation Organization” in the United Nations system, without prejudice to the observer status and functions of the Palestine Liberation Organization within the United Nations system, in conformity with relevant United Nations resolutions and practice”).

[10] UN general Assembly, Participation of Palestine in the work of the United Nations, 1998 A/RES/52/250 (July 7,1998) (“Decides to confer upon Palestine, in its capacity as observer, and as contained in the annex to the  present  resolution,  additional  rights  and  privileges  of  participation  in  the  sessions  and  work  of  the General Assembly and the international conferences convened under the auspices of the Assembly or other organs of the United Nations, as well as in United Nations conferences”).

[11] Robert McMahon and Jonathan Masters, Palestinian Statehood at the UN, Council on Foreign Relations, November, 2012, http://www.cfr.org/palestine/palestinian-statehood-un/p25954

[12] The official term used by the United Nations Security Council to describe Israeli-occupied territories is “the Arab territories occupied since 1967, including Jerusalem”, which is used, for example, in Resolutions 446 (1979), 452 (1979), 465 (1980) and 484 (1980).

[13] UN Security Council, Admission of new Members to the UN: Israel, S/RES/69 (March 4, 1949), and, UN General Assembly, Admission of New Members to the UN: Israel, A/RES/273 (III) (May 11, 1949).

[14] UN General Assembly, Status of Palestine in the United Nations: resolution / adopted by the General Assembly, A/RES/67/19 (December 4, 2012).

[15] Id. (calling a withdrawal of Israel from the Palestinian territory occupied since 1967, including East Jerusalem…and the complete cessation of all Israeli settlement activities in the Occupied Palestinian Territory, including East Jerusalem, reaffirms the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967.)

[16] Heritage Foundation, Table 1. Palestinian Authority’s Planned Accession to 15 Conventions and Treaties, April 30, 2015, available at: http://www.heritage.org/~/media/infographics/2014/04/ib4209/ib4209table1600.ashx; See U.N. Secretariat General, Note to Correspondents – Accession of Palestine to Multilateral Treaties, January 7, 2015, available at: http://www.un.org/sg/offthecuff/index.asp?nid=3786 (“In  conformity with the relevant international rules and his practice as a depositary, the Secretary-General has ascertained that the instruments received were in due and proper form before accepting them for deposit, and has informed all States concerned accordingly through the circulation of depositary notifications”).

[17] Balfour Declaration (1917), http://avalon.law.yale.edu/20th_century/balfour.asp.

[18] Jeff Halper, Is The Two-State Solution Dead?, Israeli Committee Against House Demolitions, http://icahd.org/2013/04/11/is-the-two-state-solution-dead/.

[19] Israel Ministry of Foreign Affairs, Camp David Accords, September 17, 1978, http://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/camp%20david%20accords.aspx

[20] See Halper Note 18.

[21] See UN Security Council Resolutions 242(1967) and 338 (1973); and See UNGA resolution A/RES/67/19 at note 14 (“Reaffirming also its resolutions 43/176 of 15 December 1988 and 66/17 of 30 November 2011 and all relevant resolutions regarding the peaceful settlement of the question of Palestine, which, inter alia, stress the need for the withdrawal of Israel from the Palestinian territory occupied since 1967, including East Jerusalem, the realization of the inalienable rights of the Palestinian people, primarily the right to self-determination and the right to their independent State, a just resolution of the problem of the Palestine refugees in conformity with resolution 194 (III) of 11 December 1948 and the complete cessation of all Israeli settlement activities in the Occupied Palestinian Territory, including East Jerusalem…”).

[22] Mark Landler and Steven Lee Myers, Obama Sees ’67 Borders as Starting Point for Peace Deal, New York Times, May 19, 2011 (Reporting that President Obama declared that the prevailing borders before the 1967 Arab-Israeli war — adjusted to some degree to account for Israeli settlements in the West Bank — should be the basis of a deal).

[23] Editorial Staff, Netanyahu: No Return to 1967 Borders, Al-Jazerra, May 21, 2011 (reporting on Prime Minister Netanyahu rejection of Obama’s claim of 1967 border starting point); and Gilad Sharon, Israel Is Under Attack, The Daily Beast, October 9, 2011 (claiming that, according to Former Prime Minister Ariel Sharon’s son, Israel can never return to the pre-1967 borders the Palestinians because it is under attack); and The Associated Press

Staff, Senior Likud Minister: Israel Won’t Accept Palestinian State Based on Pre-1967 Borders, Haaretz, June 9, 2013 (reporting that Deputy Defense Minister Danny Danon’s said in an interview broadcast Sunday that the Israeli government will not accept a Palestinian state with the borders favored by the Palestinian Authority and the international community).

[24] See Generally, James Crawford, The Creation of the State of Palestine: Too Much Too Soon?, EJIL (1990) at ¶ 307.

[25] David Rose, The Gaza Bombshell, Vanity Fair, Mar. 3, 2008.

[26] John Irish, Palestinians near UNESCO, Reuters, Oct. 5, 2011.

[27] See generally Jonathan Schanzer, The Return of ‘Palestine 194’, Foundation for Defense of Democracy, April 2, 2014 (describing the Palestine 194 diplomatic movement to get Palestinian recognition at the UN).

[28]UN Charter, Art. 4 (“1) Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. 2) The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.”)

[29] A Resolution Reaffirming the Commitment of the United States to a Negotiated Settlement of the Israeli-Palestinian Conflict Through Direct Israeli-Palestinian Negotiations, Reaffirming Opposition to the Inclusion of Hamas in a Unity Government Unless It Is Willing to Accept Peace with Israel and Renounce Violence, and Declaring that Palestinian Efforts to Gain Recognition of a State Outside Direct Negotiations Demonstrates Absence of a Good Faith Commitment to Peace Negotiations, and Will Have Implications for Continued United States Aid., S. 185, 112th Cong. (2011).

[30] See McMahon and Masters at Note 11 (stating that Rice called the move by Palestine “unfortunate and counterproductive,” as well as placing “further obstacles in the path of peace”).

[31] U.N., GA/11317 (2012).

[32] A/67/L.28 of November 26, 2012 and A/RES/67/19 of November 29, 2012 at Note 14.

[33] Editorial Staff, Israel defies UN after vote on Palestine with plans for 3,000 new homes in the West Bank, The Independent, Dec. 1, 2012.

[34] John V. Whitbeck, The ‘State of Palestine’ exists, Al-Jazerra, Jan. 10, 2013.

[35] See United Nations, Charter of the International Military Tribunal – Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (“London Charter”), Art. 6 & 8, (1945) (“The Tribunal established by the Agreement referred to m Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes”).

[36] See Generally Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law, 1st Ed. (2011).

[37] See London Charter at Note 35.

[38] See Generally, (Unsuccessful) International  Law  Commission  (ILC)  drafts  for an international criminal code and the statute of an international criminal court, in particular ILC Draft Code of Crimes Against the Peace and Security of Mankind (1954, 1991, 1996), But c.f., Attorney-General of the Government of Israel v. Eichmann (Israel Sup. Ct. 1962), Int’l L. Rep., vol. 36, p. 277, 1968 (English translation).

[39] See Generally Richard H. Steinberg, Assessing the Legacy of the ICTY, 2011.

[40] See Generally Leila Nadya Sadat, The Legacy of the International Criminal Tribunal for Rwanda, Washington University in St. Louis, July 3, 2012, https://law.wustl.edu/harris/documents/ICTRLecture-LegacyAd%20HocTribunals9.12.12.pdf

[41] Benjamin B. Ferencz, Defining International Aggression-The Search for World Peace, 1975.

[42] United Nations, Rome Statute of the ICC: Overview, http://legal.un.org/icc/general/overview.htm

[43] For the records of the Rome Conference, See UN, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Rome, 15 June – 17 July 1998, Available at http://legal.un.org/icc/rome/proceedings/contents.htm

[44] See Michael P. Scharf, Results of the Rome Conference for an International Criminal Court, 3 American Society of International Law Insights 10 (1998).

[45] Coalition for the International Criminal Court, Ratification of the Rome Statute, http://www.iccnow.org/?mod=romeratification

[46] Preamble, Rome Statutes.

[47] Editorial Staff, The Role of the International Criminal Court in Ending Impunity and Establishing the Rule of Law, 49 UN Chronicle 4 (2012)

[48] And Aggression when it comes into force.

[49] Art. 17, Rome Statutes.

[50] Report of the Secretary-General, S/2004/616, ¶ 49 (August 23, 2004)

[51] See UN Chronicle Supra at Note 47.

[52] Id.

[53] Id.

[54] Art. 17, Rome Statutes.

[55] Coalition for the ICC, Complementarity, http://www.iccnow.org/?mod=complementarity; and International Criminal Court, Assembly of States Parties, Report of the Bureau on stocktaking: Complementarity, ICC-ASP/8/51 (2010).

[56] See Id. at 2.

[57] William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L. J. 53, 54 (2008) (defining the principle of positive complementarity as the role of “the ICC [to] cooperate with national governments and use political leverage to encourage states to undertake their own prosecutions of international crimes”).

[58] See ASP Complementarity Note 55 at 4.

[59] Id. at 4-8.

[60] See Id. at 2.

[61] Daniel Benoliel and Ronen Perry, Israel, Palestine, and the ICC, 32 Mich. J. of Int’l. Law 1 (2010)

[62] Office of the Prosecutor of the ICC, Situation in Palestine, March 4, 2012, Available at: https://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf (“the current status granted to Palestine by the United Nations General Assembly is that of “observer”, not as a “Non‐member State.” The Office understands that on 23 September 2011, Palestine submitted an application for admission to the United Nations as a Member State in accordance with article 4(2) of the United Nations Charter, but the Security Council has not yet made a recommendation in this regard”).

[63] Id.

[64] See Resolution 67/19 Supra at Note 14 (the final vote was 138 votes in favor, 9 votes against and 41 abstentions.)

[65] ICC Press Release, The State of Palestine accedes to the Rome Statute, ICC-ASP-20150107-PR1082, July 1, 2015, available at: https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1082_2.aspx

[66] ICC Press Release, Palestine declares acceptance of ICC jurisdiction since 13 June 2014, ICC-CPI-20150105-PR1080, May 1, 2015, available at: https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1080.aspx

[67] UN Treaty Section of the Office of Legal Affairs, Summary of Practice of The Secretary-General as Depositary of Multilateral Treaties, ¶ 82, 23 (1999) available at: https://treaties.un.org/doc/source/publications/practice/summary_english.pdf

[68] Id.

[69] See ICC Press Release on Palestinian Accession Supra at Note 65.

[70] Id.

[71] UN Press Release, UN Diplomatic Conference Concludes In Rome With Decision To Establish Permanent International Criminal Court, L/2889, July 20, 1998, available at: http://www.un.org/press/en/1998/19980720.l2889.html

[72] Id. (“Israel has reluctantly cast a negative vote. It fails to comprehend why it has been considered necessary to insert into the list of the most heinous and grievous war crimes the action of transferring population into occupied territory. The exigencies of lack of time and intense political and public pressure have obliged the Conference to by-pass very basic sovereign prerogatives to which we are entitled in drafting international conventions, in favour of finishing the work and achieving a Statute on a come-what-may basis. We continue to hope that the Court will indeed serve the lofty objectives for the attainment of which it is being established.”)

[73] Id.

[74] See Jeff Handmaker, Running out of steam: Israel’s empty objections to the International Criminal Court, The Electronic Intifada, Jan. 20, 2004, https://electronicintifada.net/content/running-out-steam-israels-empty-objections-international-criminal-court/4958 (outlining the complaints levied against the Court and providing rebuttals).

[75] See e.g. Jodi Rudoren, Israel’s Foreign Ministry Issues Report Defending Conduct in Gaza War, New York Times, June 14, 2015 (citing Nathan Thrall, an analyst with the International Crisis Group, stating the proliferation of reports by Israel was an effort to head off war-crimes charges at the International Criminal Court, which generally only pursues cases in places unwilling or unable to investigate themselves); and Israeli Foreign Ministry, Israel’s Investigation of Alleged Violations of the Law of Armed Conflict, June 14, 2015, available at: http://mfa.gov.il/ProtectiveEdge/Documents/IsraelInvestigations.pdf (Defending the actions of Israeli forces in the 2014 Protective Edge conflict); and Israeli Foreign Ministry, Palestinian Authority joins the ICC – Israel’s response, Apr. 1, 2015, available at: http://mfa.gov.il/MFA/PressRoom/2015/Pages/Palestinian-Authority-joins-the-ICC-Israel-response-1-Apr-2015.aspx (calling Palestine’s decision to join the ICC, in order to initiate proceedings against Israel, a “political, hypocritical and cynical maneuver”); and Israeli Foreign Minister Avigdor Liberman, FM Liberman On Decision Of The ICC Prosecutor, Jan. 17, 2015, http://mfa.gov.il/MFA/PressRoom/2015/Pages/FM-Liberman-on-decision-of-the-ICC-prosecutor-16-Jan-2015.aspx (determining that the decision by the International Criminal Court in The Hague is a disgraceful decision whose sole purpose is to harm Israel’s ability to defend itself against terrorism).

[76] See UN Diplomatic Conference Concludes In Rome Supra at note 71.

[77] Id. at 5.

[78] UN Treaty Collection, Rome Statute of the International Criminal Court, available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en#3 (Noting that Israel is a signatory but, in a communication received on 28 August 2002, the Government of Israel informed the Secretary-General of the following: “…..in connection with the Rome Statute of the International Criminal Court adopted on 17 July 1998, […] Israel does not intend to become a party to the treaty.  Accordingly, Israel has no legal obligations arising from its signature on 31 December 2000.  Israel requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty”).

[79] Office of the Legal Adviser to the Ministry of Foreign Affairs, Israel and the International Criminal Court, June 30, 2002, http://mfa.gov.il/MFA/MFA-Archive/2002/Pages/Israel%20and%20the%20International%20Criminal%20Court.aspx (“Selective lists of crimes: The list of crimes included in the court’s statute is highly selective. Offenses such as terrorism and drug-trafficking are not included, because of political disputes over their definition and scope. The paradoxical result is that a state acting against acts of terrorism may find itself under the scrutiny of the court for the way it exercises its right of self-defense, while the terrorists themselves are outside the court’s jurisdiction”).

[80] Cf Jeff Handmaker, Supra at Note 74 (countering each claim made by Israel and determining that they are not valid under international legal standards)

[81] See Foreign Ministry Press Releases Supra at Note 75.

[82] Id.

[83] Id.

[84] Id.

[85] The Court had not completed a case until March 2012; See The Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber Decision, ICC-01/04-01/06, (2012).

[86] Mark Kersten, Israel’s challenge to the International Criminal Court, The Washington Post, January 20, 2015, https://www.washingtonpost.com/blogs/monkey-cage/wp/2015/01/20/israels-challenge-to-the-international-criminal-court/

[87] See FM Liberman on decision of the ICC prosecutor, Supra at note 75.

[88] Id. (“We will demand of our friends in Canada, in Australia and in Germany simply to stop funding it. This body represents no one. It is a political body. There are a quite a few countries – I’ve already taken telephone calls about this – that also think there is no justification for this body’s existence.”)

[89] Barak Ravid, Netanyahu to Launch Media Campaign Against ICC, Haaretz, Jan. 19, 2015, http://www.haaretz.com/israel-news/.premium-1.637807

[90] See Mark Kersten supra at Note 86.

[91] Id.

[92] Barak Ravid, Exclusive: Israel Decides to Open Dialogue With ICC Over Gaza Preliminary Examination, Haaretz, Jul. 9, 2015,  http://www.haaretz.com/israel-news/.premium-1.665172

[93] Id.

[94] See International Law Commission, The Obligation To Extradite Or Prosecute, Yearbook of the International Law Commission, vol. II (2014) (reiterating all Nations have the responsibility to extradite or prosecute international criminals under international law).

[95] Lacuna Yesh Din, War Crimes In Israeli Law And Court-Martial Rulings, July 2013, available at: https://www.yesh-din.org/userfiles/file/Reports-English/Yesh%20Din%20-%20Lacuna%20Web%20-%20English.pdf (reviewing Israeli Courts Martial cases and the laws used in such tribunals and determining that they fall short of international standards; See also Human Rights Watch, Promoting Impunity: The Israeli Military’s Failure to Investigate Wrongdoing, 22 June 2005, E1707, available at: http://www.refworld.org/docid/42c3bd100.html (coming to similar conclusions as Yesh Din).

[96] Id.

[97] International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287.

[98] See Yesh Din supra at Note 95.

[99] Id.

[100] Editorial Staff, Israeli PM in war crimes pledge, BBC News, Jan. 25, 2009, http://news.bbc.co.uk/2/hi/middle_east/7850085.stm

[101] See Yesh Din and Human Rights Watch supra at Note 95.

[102] Art. 17, Rome Statutes.

[103] International Bar Association, Fairness at the International Criminal Court 8-11, August 2011; See Also Amnesty International, The International Criminal Court, Fact sheet 9, Fair trial guarantees, available at: http://www.iccnow.org/documents/FS-AI-FairTrialGuarnt.pdf

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