By Andrew Tucker, Director of thinc.
On 6th August, The Hague Initiative for International Cooperation (thinc.) submitted “written observations” to the International Criminal Court (ICC). These observations concern the request made by the ICC Prosecutor (Karim Khan KC) on 20th May 2024 to the Court’s Pre-Trial Chamber to issue arrest warrants against three Hamas leaders and two Israeli leaders for alleged crimes committed in Gaza in recent months.
One of Khan’s main allegations is that the Israeli leaders imposed “a total siege over Gaza”, and used starvation of Palestinians in Gaza as a method of warfare.
thinc. is one of a large number of organizations, states and experts who are arguing that the Prosecutor’s request is highly problematic, and that the Court should not issue arrest warrants against Israeli leaders.
In February 2021, the ICC Pre-Trial Chamber made a preliminary ruling on whether it has “jurisdiction” over crimes committed by Israelis “in Palestine”. The ICC decided that it has that jurisdiction, because Palestine is a State Party to the Rome Statute – but that “the Chamber’s conclusions pertain to the current stage of the proceedings, namely the initiation of an investigation by the Prosecutor pursuant to articles 13(a), 14 and 53(1) of the Statute. When the Prosecutor submits an application for the issuance of a warrant of arrest or summons to appear under article 58 of the Statute, or if a State or a suspect submits a challenge under article 19(2) of the Statute, the Chamber will be in a position to examine further questions of jurisdiction which may arise at that point in time” (para 131).
On 10th June 2024, the previous UK government asked the Court to reconsider the issue of the Court’s jurisdiction in light of the Oslo Accords. On 27th June, the Court allowed the UK to make such submissions, and allowed other states and interested organizations and persons to apply to make submissions concerning the Court’s jurisdiction to issue arrest warrants against Israeli leaders. (The UK has since reversed its position, and no longer challenges the ICC’s jurisdiction). On 22nd July, the Court granted leave to certain states, organizations and persons, including thinc., to make written observations, pursuant to Rule 103 of the Court’s Rules, by 6th August.
In its observations, thinc. raises four main reasons why the ICC should not issue arrest warrants against Israeli leaders:
1. The ICC does not have “jurisdiction” to prosecute crimes committed on Palestinian territory. Because Palestine is not yet a state, and the Palestinians do not have sovereignty over Palestine, “Palestine” does not have the power to prosecute Israelis, and therefore cannot delegate criminal jurisdiction to the ICC. This argument is based on the view that the ICC only has the powers that are delegated to it by states.
2. The Court should respect the Oslo Accords, which specifically state that only Israel has jurisdiction to prosecute Israelis in Gaza. Those agreements are valid and enforceable and have never been terminated.
3. There is insufficient evidence that Israeli leaders have committed crimes – especially the allegations of a “total siege” and “starvation” is based on very weak factual and legal analysis. As other amici have also demonstrated, “there are no reasonable grounds to believe [Netanyahu and Gallant] committed the crimes alleged by the Prosecutor.”
4. The Prosecutor has not respected the principle of “complementarity”. The Prosecutor’s failure to notify Israel under Article 18 of the Rome Statute of the crimes he alleges to have been committed, is “a serious violation of the complementarity principle, around which the entire ICC legal framework has been built.”
Andrew Tucker, Director of thinc.:
“We have urged the Court to reconsider its jurisdiction because we think the court cases in The Hague are provoking violence and escalation of the conflict in the region.
The Palestinians claim that they are “a defenseless occupied people who are denied justice, in an unlawfully occupied territory – the very hallmarks of abusive colonial power.” This is an inversion of history.
On the contrary, as we have extensively demonstrated in our recent report “Two States for Two Peoples?”, the State of Israel is a legitimate expression of the right of the Jewish people to self-determination. The fact that the Palestinians do not have their own state is not Israel’s fault, but primarily the result of their own refusal to accept the right of the Jewish people to nationhood. For one hundred years, the Palestinian political leadership has rejected every opportunity of co-existence, and they continue to do so today.
The cases before the ICC and ICJ are the result of lawfare – the deliberate manipulation by the Palestinian political leadership of the international legal system to continue their religiously- and ideologically-driven campaign to deny the legitimate existence of a Jewish homeland.
Let’s not forget that it is still the Palestine Liberation Organization (PLO) that is driving this agenda – an organization established in 1964 to destroy Israel, and that has consistently refused to amend its Charter to disavow violence and terror to achieve its zero-sum aims.
In November 1947 the Arab Palestinians rejected the UN’s Partition Plan. Instead they decided to try and destroy the Jewish nation. Despite this rejectionism, the Jewish State of Israel was created in 1948. Since then, the Arab world generally and the Palestinian political leadership (represented by the PLO) has continued to use war, terror, violence and even the legal system to attack Israel, and demand a Palestinian state that replaces the Jewish State of Israel. Israel’s position is that it accepts that the Palestinians have a right to independence, but not at the expense of the existence and security of the Jewish state.
Israel and the PLO entered into “Oslo” agreements in the 1990s, to negotiate the way forward to a final peace. Those agreements are binding. They cannot and must not be overturned by a court of law. And yet that is exactly what is happening. Since about 2011 the PLO has been deliberately using both the ICC and ICJ to by-pass negotiations. The ICC proceedings are closely related to the ICJ’s recent Advisory Opinion. In both the ICC and the ICJ, the Palestinian leadership is seeking a court ruling on the existence and territorial scope of the State of Palestine. The courts are allowing themselves to become the arbiters of a dispute that the parties themselves have agreed can only be resolved through a political process. That is unacceptable under international law.
Self-determination is a relative right, it is not absolute. It cannot be used to undermine the sovereignty of existing states. The factual and legal reality is that Palestinian self-determination is in the process of fulfilment. The Palestinian Authority has been created, and the Palestinians already have a far-reaching degree of autonomy. They have agreed to a process of negotiations to reach a final agreement, which will achieve a balance between Israel’s security needs and Palestinian self-determination aspirations. But at the same time, Israel has strong legal claims to title to the territory west of the Jordan river, and it has a right to security. No court has the right to simply ignore or sweep those rights aside.
In our view, the ICJ’s recent Advisory Opinion on these issues is seriously one-sided and deeply flawed.
The ICC and ICJ must insist that the only way forward to achieve a long-term, sustainable peace is through good-faith negotiations and collaboration – respecting the existing rights and obligations of both Israel and the Palestinians.
Many people complain that Israel is deliberately avoiding its responsibilities under international law, and that its impunity needs to be brought to an end. We would argue that this narrative ignores the historical record and the realities on the ground. Of course Israel may not infringe international human rights and humanitarian law, and it should be held to account where it fails to do so. But it is entitled – like all other UN member states – to secure boundaries, to self-defense against attacks, and to freedom from terror and other acts or threats of violence.
It’s also important to realize that all of this is happening at a time when Israel is literally fighting for its existence. Iran and its proxies and partners are constantly threatening and attacking Israel. Hamas. PIJ and other Iranian-sponsored entities deeply hostile towards the Jewish people are deeply embedded in Palestinian society – not only in Gaza but also the West Bank. Palestinian President Abbas and the other PLO leaders have consistently refused to abandon terror, and they do not come to the courts with clean hands. It is unfathomable that the international courts seem to ignore this reality.
The ICC and ICJ have a responsibility to independently assess the law and the facts, and not rely unquestioningly on one-sided and spurious claims. We think the ICJ failed to do so in its Advisory Opinion, and we hope the ICC will act in a more realistic and judicious manner.”
Background – Israel and the ICC
The ICC was established by the Rome Statute, which came into force in 2002. Only states can become parties to the Rome Statute. Every state is free to join, or not join, the ICC. Currently, 124 of the 193 UN member states are parties to the Rome Statute. Israel, the USA, China, Russia, and India are amongst the states that are not parties to the Statute.
The ICC prosecutes individuals, not states. It can only prosecute individuals for those crimes in three situaitons:
- Crimes that have either been committed by a national of a State that has become a Party to (or otherwise accepted the jurisdiction of) the ICC’s Statute
- Crimes that have been committed on the territory of such a State (article 12(2)).
- There is also a third possibility – referral of a “situation” to the ICC by the Security Council acting under Chapter VII of the UN Charter (art. 13(b)).
Israel is not a state party to the ICC. It has not accepted the Court’s jurisdiction. It was very involved in the drafting of the Rome Statute and was a strong supporter of the creation of the ICC. But it decided at the last minute not to ratify the Rome Statute because of concerns that the Rome Statute would be used as a legal weapon against it in its conflict with the Palestinians.
This means Israelis can only be prosecuted by the ICC if they commit Rome Statute crimes on the territory of a state that is a party to the ICC.
Background – Palestine and the ICC
The Palestine Liberation Organization (PLO) is the internationally recognized representative of the Palestinian people. The PLO has been seeking access to the ICC since 2009. In 2012, the UNGA resolved that “Palestine” is a “UN non-member observer state” (Res 67/19). Based on that resolution, “Palestine” joined the Rome Statute in 2015, by submitting its “accession” papers to the UN Secretary-General, in accordance with the procedures set out in the Rome Statute under which “any State” may accede to (i.e. become a party to) the treaty. The Secretary-General decided to accept those papers, although he acknowledged this did not mean that Palestine constituted a “State”. Palestine was thereby adopted into the “Assembly of State Parties” (to the Rome Statute).
In 2015, the former Prosecutor (Bensouda) began examining the “Situation in Palestine”. In 2019 she came to the view that Israeli settlement policies and Israeli and Hamas conduct during the Gaza conflicts since 2004 constitute war crimes under the Statute of Rome.
The Prosecutor realized the controversial character of this case because Israel is not a party to the Rome Statute, the status of the West Bank and East Jerusalem is hotly contested and legally uncertain, and it is widely recognized that Palestine is not a “State” within the conventional meaning of statehood under international law. Therefore, in order to be certain that she had the power to investigate these crimes, in January 2020, the Prosecutor requested the PTC to decide whether “Palestine” is a “State on the territory of which the conduct in question occurred” (article 12(2)(a) of the Statute). As Israel is not a State Party, and as the UN Security Council has not referred the situation to the ICC, this would be the only basis on which the ICC could have “jurisdiction” to investigate crimes “in Palestine” by Israeli or Palestinian leaders.
In March 2020 the PTC invited all states and also a number of legal experts to make submissions to assist it in its decision-making. Over 50 submissions were made. The Prosecutor responded to those submissions in April 2020. The PTC has taken almost a year to deliberate the question of its jurisdiction.
The PTC’s decision was made by two of the PTC’s three judges (French Judge Marc Perrin de Brichambaut, and Judge Reine Adélaïde Sophie Alapini-Gansoufrom Benin). The majority decided that the Statute requires it to avoid the complex and politically controversial question whether or not Palestine is really a “State” as normally understood under international law. Instead, it decided that the bare fact that the UN has allowed Palestine to become a “State Party” to the Rome Statute, on the basis of the 2012 UN General Assembly resolution 67/19, is enough for it to qualify as a ‘State on the territory of which the conduct in question occurred’ for the purposes of article 12(2)(a) of the Rome Statute. Furthermore, they held that the “territory” of Palestine is the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem – simply because that is the territory referred to in Resolution 67/19 (2012).
The third judge (Péter Kovács) vigorously disagreed with the majority’s reasoning and conclusions and filed a dissenting opinion of over 160 pages and more than 500 footnotes. He criticized the majority for adopting “acrobatics” that “mask legal reality”. He attacks what he regards as many legal and factual flaws in the majority’s decision. Based on his detailed analysis of the legal, historical and political background, Kovács came to the view that the Court cannot avoid deciding whether or not Palestine is a State under international law. He concludes that Palestine may become a state in the future, but it is not yet a state. The current legal reality is governed by a complex network of international law instruments including the Oslo Accords, which are treaties that bind both Israel and the Palestinians. Under those agreements, Israel and the PLO have agreed on a division of responsibilities. This means that Palestine’s “territory” for the purposes of the Rome Statute is limited to Areas A and B of the West Bank – where the Palestinian institutions have certain criminal jurisdiction under the Oslo Accords. According to Judge Kovács, the Prosecutor is not allowed to investigate any crimes committed in Area C or “East Jerusalem”, without Israel’s consent.
