The ICC Farce

In August 2014, after meeting with International Criminal Court (ICC) officials in The Hague, Palestinian foreign minister Riad Malki remarked that “Israel has left us with no other option.” Malki was referring to an initiative that would make the Palestinian state an ICC member with the authority to call for an investigation into alleged Israeli war crimes and crimes against humanity.

Although Malki’s statements were headline grabbing, they are specious, not within a legal framework, and prey on the uninformed. In 1998, through then-U.N. Secretary General Kofi Annan’s initiative, U.N. members met for a five week session in Rome to discuss an ICC mandate. The “Rome Statute” emerged, which provided the ICC its mandate. Certain countries signed the Rome Statute but never ratified it, including the U.S. and Israel. The key factors in understanding its scope are who falls under ICC jurisdiction, which does not include Israel, and when the ICC can exercise its authority, which does not include this Palestinian “option.”

More recently, the Palestinian leadership is seeking ICC prosecution of Israel by categorizing settlement expansion as a crime of “aggression.” As will be explained, the Rome Statute’s definition of “aggression” is not broad enough to include settlement expansion. As such, the Palestinian use of its ICC threat may be sensational and politically opportunistic, but has no legal teeth.

The Rome Statute, like all international law, is a treaty. That is, unlike the structure of a domestic government whose legislators enact laws, the international arena has no such structure. Rather, treaties between sovereigns create law obliging the parties to that treaty. Therefore, under International law, a non-party to a treaty is not obliged by that treaty. The same for the ICC. Only those nations that ratified the Rome Statute fall under ICC jurisdiction, excluding Israel. Therefore, from a legal standpoint, the ICC cannot prosecute Israel any more than it can prosecute petty theft on the London underground.

Even if Israel was party to the Rome Statute, the ICC would still lack prosecutorial power over Israel at this point. The Rome Statute empowers ICC prosecutors to petition the court for justice for the following crimes: (a) genocide; (b) crimes against humanity; (c) war crimes; and (d) aggression. (The Rome Statute, art. 5, July 17, 1998, 2187 U.N.T.S. 3) However, a key point of ICC prosecutorial ability is that the member state in question “is unwilling or unable genuinely to carry out the investigation or prosecution” against a perpetrator of the alleged crimes that would otherwise fall under ICC jurisdiction. (art. 17) In other words, the ICC only acts as an external tribunal of justice when an internal tribunal is nonexistent or inefficient. And Israel has demonstrated the capacity to prosecute war crimes.

Israel clearly pursues perpetrators of war crimes. Currently, Israeli State Comptroller Yosef Shapira is conducting an investigation into war crimes committed during last summer’s Gaza war. In 2010, the Turkel Commission, headed by former Israeli Supreme Court Justice Yaakov Turkel, conducted an investigation into the May 2010 Flotilla raid, where nine “peace” activists were killed. The Turkel Commission, which consisted of Israeli and international law experts from various countries, cleared Israel of wrongdoing. In 1982, Lebanese Christians, in coordination with the Israeli army, sought revenge from the PLO for assassinating former Lebanese Christian Prime Minister Bachir Gemeyal and attacked the Palestinian refugee camps of Sabra and Shatila. The attack left 400-800 people dead, including civilians. An Israeli inquiry concluded that the Israeli defense establishment was indirectly at fault. The preceding demonstrates Israel’s internal willingness and ability to carry out war crimes inquires. Thus, the ICC, as an external tribunal, lacks standing to prosecute Israelis accused of war crimes.

Regarding the alleged crime of aggression, the Rome Statute incorporates United Nations resolution 3314 for defining aggression. (art. 5) Resolution 3314 requires the use of armed force as part of an act of aggression, which can include armed force for territorial expansion. However, current settlement expansion in the West Bank is not a direct result of armed force to obtain the territory; the territory has been under Israeli control for forty plus years while settlement building is a product of recent population growth. For this reason there is no causal relationship between the initial Israeli presence in the West Bank and settlement expansion today. Consequently, the Palestinian claim of equating settlement expansion with aggression has no legal basis and is irrelevant to the ICC.

As explained, the recent Palestinian-ICC engagement is sensational and political, but legally toothless. If, as Mr. Malki stated, utilizing the ICC is the only Palestinian “option,” the Palestinian leadership needs a good dentist.