Israel must ratify the ICC statute

The Palestinian recourse to the International Criminal Court (ICC) suddenly became a U.S.-Israeli bilateral issue, even with domestic U.S. repercussions. Israeli officials stated they will appeal to the U.S. Congress for the latter to enforce its law of ceasing any financial aid to the Palestinian Authority in case the later resorted to the Court as it did. The specific U.S. legislation is not subject to a veto by the U.S. President and the Administration has already brought its worry from such a move. These domestic rifts in the White House-Congress already strained relationship should make Israel think again of this move.

On related grounds, there are thoughts of Israel indicting Palestinian in U.S. Courts or in the ICC through pro Israel legal groups. Again, this is the wrong way of proceeding. It is dubious whether U.S. domestic courts have jurisdiction for criminal and civil issues concerning third parties in absence of a U.S. bond. Even in cases such bond exists in the form of a U.S. citizen victim of an attack and U.S. courts have adjudicated in the past sums of compensation against Iran or the Palestinian Authority, practically, these cases have not gained the legal or media gravity required in order to stir also political developments as the ICC prosecutions aspire to do.

Neither will any appeals by private pro Israel bodies to the ICC provide the impetus Israel believes will be achieved in order for any Palestinian initiatives to be thwarted. The Prosecutor will see with different eyes appeals made by state parties and appeals coming from private groups which have also a clear affiliation. Israel should not be fooled; the only way to adequately respond to the Palestinian step is by ratifying the ICC Statute. In the past, Israel signed the Statute, but later rendered clear it did not intend to become party to it. Reviewing this decision is what is in essence required.

True, Israeli citizens will become susceptible to the Court’s jurisdiction, but pursuant to the Statute itself, not if Israel’s judicial system genuinely distributes justice. And on an institutional basis, when it comes to alleged war crimes involving policy measures, such as the settlement activity and house demolitions, which could fall in the Court’s ‘systematic and widespread’ requirement, the moment the Palestinians lodge a relevant complaint, state-signatories to the ICC, particularly in Europe will find themselves compelled to cooperate with the Court in a possible arrest warrant.

At the same time, regarding settlement activity, and excluding any ‘natural growth’ cases which fall in the settlers’ right to live an adequate life under human rights law, until the political decision for their evacuation is issued, Israel could point out that building in settlements mainly takes place in parts of East Jerusalem and the West Bank which the Palestinians themselves have explicitly agreed will fall in the realms of Israel under a future agreement, like Jewish neighborhoods and settlement blocs, whereas in house demolitions, albeit their illegality, following the Supreme Court sanctioning, any Israeli complicity can be seen under the lens of the ‘mistake of law’ concept, a legal fiction that absolves intent through the individual’s perception that his actions are lawful although they are not. War crimes need such intent in order to be prosecuted in the International Court.

But even if such complaints do proceed to indictment by the Court, an Israeli ratification will soothe Israeli fears of Israelis being tried out of politicization reasons. Once both Israelis and Palestinians have the right to equally lodge complaints against each other in the ICC, the number of cases submitted by both sides will spike, leading to the storming of the international criminal jurisdiction, a legal Armageddon.

The Court, caught in the middle of a feuding judicial struggle with acute political characteristics, may well decide to look thoroughly into each case. This will take a considerable part of its time and budget, the particular cases monopolizing its docket. Alternatively, the Court, understanding the political motives behind such mutual incriminations, may become more cautious to the appropriateness of their judicial treatment. On a national level, the precedents of Belgium and of the United Kingdom, where the universal jurisdiction legislation, has been changed, in order to become less a priori encompassing, are indicative.

Ultimately, ratification of the ICC Statute, on account of the new Israeli government that will emerge after the March elections, will underscore Israel’s willingness to once again embrace the international community and the causes of justice which it has no reasons to deny. Justice will be sought, for both sides. Ultimately, it is this justice that may bring the two sides also closer once again to its other.

About the Author
Dr. Solon Solomon is lecturer in law, holding degrees from the Hebrew University and King's College London and in the past has served in the Knesset Legal Department on international and constitutional issues