ICC, recognizing non-state ‘Palestine’s borders, undermines its Principles. Is this possible?

The ICC was created on noble pursuits decades after the end of the Holocaust: a calamity of historic proportions that resulted in the deaths of six million Jews and millions of gentiles. During World War II, the civilians in Nazi occupied territory had no one to speak for them. Even for the millions of civilians who became war casualties in “less” atrocious means, including by Soviet and allied armies, an accounting of justice needed to be heeded, especially in cases when the army command itself failed to persecute. Since WWII the atrocious targeting of civilian populations continued, whether in Vietnam, conflicts in Africa, the former Yugoslavia, and even in the Former Soviet Union to name a few examples. The idea of having an international court that will apply International Law regarding war crimes was therefore a noble one. For once, there will be a “court of last resort” and justice could be served in war’s most heinous crimes.

Until came the “State” of Palestine “ascension” in 2015 to the Rome Statute and yesterday’s ruling. A reading of the 60 page legal brief by a panel of three judges (two for and one against) creates distortions of accepted International Law and is a clear attempt by the court to meddle in politics and to impact a state that is not a member of the Rome Statute.

In fact the ruling is full of justification of a political nature as to why the International Criminal Court (ICC) should intervene, despite the fact that until the ruling, Palestine was not recognized as a state and Israel is not a member of the court.

The legal brief in fact states this explicitly in paragraph 55:

It should however be noted that, by the very nature of the core crimes under the Rome Statute, the facts and situations that are brought before the Court arise from controversial contexts where political issues are sensitive and latent. Accordingly, the judiciary cannot retreat when it is confronted with facts which might have arisen from political situations…

The paragraph is part of a full section of the report trying to argue why the court should interfere in political matters. However, the political decision was made earlier.

The chief persecutor of the court’s opinion is clear in paragraph 22:

The Prosecutor is of the view ‘that the Court’s territorial jurisdiction extends to the Palestinian territory occupied by Israel during the Six-Day War in June 1967, namely the West Bank, including East Jerusalem, and Gaza’…

However the persecutor is mindful that there are unique examples to the case, and therefore submits a request to clarify.  The judges chose to twist International Law and convention in order to make their case. The judges write in paragraph 115: disputed borders have never prevented a State from becoming a State Party to the Statute and, as such, cannot prevent the Court from exercising its jurisdiction…

How are the borders determined? By United Nations General Assembly Resolution 67/19 (in paragraph 116), which ” ‘[reaffirmed] the right of the Palestinian people to self determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967” . Further using the UN General Assembly resolution, something that has no legal standing until the ICC took a look at it, the court states in paragraph 118: On this basis, the Chamber finds that the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.

In regards to the Oslo Accords, the current set of agreements defining jurisdiction in the area, the ICC was explicit in this as well in paragraph 25:

 Palestine’s ability to delegate its jurisdiction to the Court is limited because it does not have criminal jurisdiction with respect to Israelis or with respect to crimes committed in Area C (nemo dat quod non habet)’, 98 the Prosecutor ‘does not consider these limitations in the Oslo Accords to be obstacles to the Court’s exercise of jurisdiction’…

In explaining why in the same paragraph the court again sites the same United Nations General Assembly Resolution (67/19) and a history of “Palestine” joining international bodies and an “indigenous” population under occupation.

The Changes to International Law Created by the Court

The court’s jurisdictional ruling not only changes International Law but also precedent and can have dangerous implications not only in terms of the binding aspect of United Nations resolutions but also on how states are recognized.

Until the ICC’s ruling, United Nations General Assembly resolutions were NON BINDING and only resolutions of the United Nations Security Council had the effect of force of law. The ICC’s own charter (Article 13 B) allows a decision of the United Nations Security Council to refer cases to the court persecutor. This ruling supersedes this requirement and instead focuses on one General Assembly Resolution (67/19) and provides it with force of law. This should be opposed by anyone who believes in the power of the United Nations Security Council for it directly supersedes its authority.

Likewise, the ruling supersedes the Oslo Accords in its entirety and establishes borders of jurisdiction for a future Palestinian state, against the consent of Israel, one of the two parties to the Oslo Accords. The legal brief goes into detail as to why Article 12 of the Rome Statute, prerequisites to the exercise of jurisdiction, is in fact applicable to the case mainly calling ‘Palestine” a state ascending to the Rome Statute and therefore including all its “territory” [paragraph 24] (without dwelling into what constitutes this territory except one General Assembly resolution).

The ruling also creates a precedent in how states are viewed in International Law. According to the Montevideo Convention (1933) a state is defined as an entity that has territory, a population, a government, and is able to conduct relations with other states. As is clear in the case of Palestine, only the fourth applies and even here is very limited. As my masters thesis in England argued, Gaza, which is part of “Palestine” can function as a completely separate state to the rest of “Palestine”. Unlike “Palestine” as argued by the ICC, Gaza has a clear territory, a clear government (Hamas), a clear population, and a limited ability to interact with states. Additionally, East Jerusalem has been annexed to Israel and Israeli sovereignty has been applied there including to its Palestinian residents since 1981. While the annexation has not been recognized for the most part by others, statements from the United States and others including in negotiations over the Oslo Accords have always indicated that Israel would keep some of East Jerusalem.

Even in the West Bank (Judea and Samaria), “Palestine” hardly has the trappings of a state beyond its institutions in Area A which account for 40% of the West Bank’s territory.  The agreements are rooted not only in the Oslo Accords, but in the premise that no previous sovereign “Palestine” was there to remove rights from and therefore lead to “occupation”. In fact the Jewish Right of Self Determination and habitation everywhere in the West Bank was stated clearly in the British Mandate for Palestine by the League of Nations in 1918 and by the San Remo conference in 1920. A reading of my take on Jewish rights to habitate the West Bank under International Law can be found here.

If I were to now live in a house next to the Kotel in the Old City of Jerusalem, I would now become a potential war criminal based on the ICC’s jurisdictional interpretation of International Law. The ICC ruling that all of  the West Bank, Gaza, and East Jerusalem is now “Palestine” is therefore unprecedented. Now, according to this new precedent, all that is required for a state to exist is ascension to international treaties.

The court never looked at the complex historical background but simply chose a line and a time and erased history. This makes the court guilty of erasing international legal precedent and Pacta Sunt Servanda, a legal term that means to stand by previous agreements. At best, the West Bank situation is complicated; However the Jewish people NEVER renounced their historical claims to Judea and Samaria. We did not simply “transfer” onto the territory but are exercising historical claims. The court, through its jurisdictional ruling and future investigation into “settlements”, (which the chief prosecutor mentioned is a future matter of investigation) therefore attacks the Jewish Right of Self Determination by clearly claiming we have no right to live there.

Left unchallenged the court’s decision unacceptably changes international legal precedents which could reverberate way beyond Israel’s borders.

What are the Implications for Israel?

For the immediate future, little. However, the legal brief opens the door for the court to investigate what it deems are international war crimes in “Palestine” which is in East Jerusalem, the West Bank, and Gaza based on the court’s own verdict.

The chief prosecutor mentioned an investigation into the 2014 military operation Protective Edge into the conduct of the Israeli Defense Forces (IDF) and the Hamas group. However mechanisms within the ICC itself (Article 17, Rome Statute) may diminish a case here as Israel has legal bodies that investigate potential war crimes. The bar on internal investigation was set quite low in a previous case investigating the United Kingdom in Iraq

On the contrary, the ICC can become a nightmare for the Palestinian Authority and Hamas as the treaty now allows other state parties to bring terrorists to account. Every future suicide bombing, every rocket fired, if originated from “Palestine” can now directly become the court’s jurisdiction if referred by another state party. If indicted, the Palestinian terrorists cannot visit many countries including neighboring Jordan which is a state party to the Rome Statute. Now Jordan will be obliged by treaty to extradite them to the Hague for trial. The treaty may ironically keep “Palestine” in check from some of the most heinous acts out of fear of being investigated by the Hague if not from retribution from Israel.

However, where the implications for Israel become the most stark refers to the “war crime” of “transferring population into an area in which it occupies”, a criteria in the Fourth Geneva Conventions. This would offcourse need to be debated in light of Israel’s historical and legal claims, especially to East Jerusalem and the West Bank. However, if the ICC is unfazed by Israel’s arguments, the court could in theory give the Boycott Investment and Sanctions (BDS) movement an enforcement arm to attack any Israeli connection beyond the Green Line. While the investigations will mostly focus on head of government (Netanyahu), ministers, and heads of municipalities, this area of law is not clearly defined and could lead to a situation where any Israeli that has political power finds himself indicted, including companies. While the ruling will not impact Israeli control in the West Bank and Jerusalem it would subject the indicted individuals to international arrest warrants from 122 countries (unless the party countries put in an objection to the Rome Statute treaty, which technically is also possible under International Law), severely hampering travel and perhaps even business if the indicted includes members of important businesses.  The treaty countries would be forced to arrest any Israeli on the charge lists that arrive to their borders and hand them over to persecution at the ICC in the Hague. An extreme headache, and an international quagmire if it evolves to this point.

Another negative consequence is that for the first time in years Palestine is back on the map, and by being empowered by the ICC, creating a public relations headache for Israel. With COVID 19, Iran, and Trump dominating headlines, Israel had a reprieve from Palestinian incitement. It seems the reprieve is now over, and incitement will now likely resume, blackening Israel’s name around the world even if its claims ended up being justified.

For Israel to maneuver this potential minefield it must convince its friends to put in objections and reservations to the Rome Statute excempting arrest of Israelis.  Israel must work with the United States to continue to sanction the ICC and it may be a worthwhile initiative to form an international NGO similar to UN Watch at the Hague to gain a list of indicted future Israelis and provide an early warning system. A focus on public relations including Jewish claims to the West Bank and Jerusalem may be vital in winning the fight and Israel should not be afraid to use the Bible as a key text of national self determination.

However, at the end of it, the politicization of the Israeli Palestinian conflict by the court should be a cause of alarm to everyone who truly wants to see the ICC succeed in its mandate of being a “court of last resort” for some of the world’s most heinous crimes. Not only will it turn a political issues into a witch hunt but will take up a lot of time it should rather be using to persecute real cases of severe war crimes. An Israeli who lives in East Jerusalem did not commit genocide, mass rape, create famine, or use weapons of mass destruction on Palestinians, examples of crimes of magnitude the court was founded to investigate.

For thousands of years there has been Jewish habitation in “Palestine” (the borders of the state of “Palestine” recognized by the ICC). The area is home to Judaism’s holiest sites. This was a point not analyzed by the three judges who gave the ruling. Article 36 (3) of the Rome Statute states that judges must be: chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices. Their ruling (with judge Péter Kovács dissenting opinion being the exception), granting “Palestine” full 1967 jurisdictional borders without Israel’s negotiation or consent is therefore not only political but a partial judgement against the ICC’s own founding treaty.

The ICC is not the solution to the Israeli Palestinian conflict. Its political interference in this conflict will severely undermine the court which was originally meant to be a “a court of last resort” and distract it from its real purpose. If it continues, such interference should be opposed completely not only for the sake of the future of Israel and the Palestinians but also for the integrity of the court itself.

About the Author
Born in Israel but raised in Canada, Gil Lewinsky worked as a journalist in Jewish newspapers including the Jerusalem Post after completing a Masters degree at the Munk School of Global Affairs from the University of Toronto. He also has a LLM in International Law from Lancaster University in the UK. His past topics include a book written about the Status of Gaza under International Law soon after its conquest by Hamas in 2007. He is perhaps best known as one of two people that brought a flock of Jacob Sheep from Canada to Israel in 2016, making history. He currently works as a teacher and public relations professional in Israel.
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