By Anne Herzberg*, NGO Monitor
The March 3, 2021 decision of the Prosecutor of the International Criminal Court to open a full investigation of the “Situation in Palestine” has prompted responses advising the Israeli government to take a more cooperative approach toward the Court. Yet there are a number of strong strategic, diplomatic, and legal arguments for not cooperating. This study analyzes the considerations that must be weighed carefully by Israeli policy makers before deciding next steps.
On March 3, 2021, Prosecutor of the International Criminal Court (ICC) Fatou Bensouda issued a statement confirming the initiation of an investigation by the Office of the Prosecutor (OtP) “respecting the Situation in Palestine,” covering crimes purportedly within the jurisdiction of the Court, dating from June 13, 2014. She noted that although the Court is currently facing “operational challenges” from the COVID-19 pandemic, limited resources, and “our current heavy workload,” such “daunting and complex” challenges “cannot divert us from ultimately discharging the responsibilities that the Rome Statute places upon the Office.”
In December 2019, Bensouda requested from the Pre-Trial Chamber (PTC) a confirmation of jurisdiction to open an investigation. Her March 3, 2021 announcement that the investigation would proceed followed the February 5, 2021 decision by the PTC confirming the OtP had jurisdiction to open an investigation in Gaza, the West Bank, and “East Jerusalem.” The opinion was issued despite the facts that the Palestinian Authority lacks the capacity to join the Rome Statute because it is not a state, and Israel is not a member of the Court.
Bensouda’s statement has prompted responses from several Israeli scholars and those sympathetic to the Court (one analysis considered the Prosecutor’s statement to be a sign of “outstretched friendship”) advising the Israeli government to take a more cooperative approach toward the Court. Such well-intentioned recommendations appear to be based on the theory that engagement with the OtP will lead to a more favorable result for Israel than would occur in its absence.
In contrast, there are strong strategic, diplomatic, and legal arguments for not cooperating, and for concluding that engagement with the ICC would legitimize an illegitimate process. Israel is not a member of the Court, it did not ask for this investigation, and the machinations of the Palestinians and their allies that led to this decision are part of a calculated campaign to internationalize the Arab-Israeli conflict and circumvent a negotiated peace settlement. The Prosecutor’s active collusion in this effort cannot be overlooked or understated.
It is also true that some advocates for engagement are perhaps more concerned about shoring up the ICC as an institution than they are about Israel’s best interests. These interests include preserving sovereign rights, ensuring security and existence as the nation state of the Jewish people, and rejecting pressure leading to a situation in which it is coerced into acting as a de facto member of an institution it has not consented to join.
This is not to suggest an absolute rejection of engagement with the Prosecutor. Engagement could take many forms. For instance, Israel could, under Article 18(2), seek a deferral of proceedings on the basis that the alleged acts at issue were or are being investigated. Israel, either itself or through proxies, could contest jurisdiction at all stages of the investigation, including challenging any decisions relating to complementarity, gravity, and interests of justice considerations. It could submit information challenging the narratives and source material relied upon by the Prosecutor; it could publish and perhaps provide the OtP with exculpatory material; and it could even submit complaints against Palestinian Authority officials and other actors who have routinely committed international crimes under the Rome Statute. Pursuant to Article 16, Israel could appeal to the Security Council for a deferral on the basis of a resolution passed under Chapter VII of the UN Charter. The assessment of these options may shift as the OtP transitions to leadership under Karim Khan, depending on how he chooses to proceed.
Some of these actions might be vital to asserting and defending Israel’s factual and legal case, so as not to cede the public information space solely to the Prosecutor, the Palestinian Authority, or others hostile to Israel’s interests. They could also serve as an important check on the activities of the Prosecutor and the Court, and, more broadly, hold them accountable.
Israel has the right to make its case regardless of its cooperation with the Court, even if some commentators don’t like the tone. Importantly, Israel should not concede the premise that the Court acts benignly, solely within the parameters of established international law (whether that pertains to jurisdiction, statehood, or the elements of the crimes themselves). Nor should Israel concede that the Court is not systemically vulnerable to political exploitation and instrumentalization. This, however, is a more nuanced position, and more difficult to explain, than populist assertions made to Israeli domestic audiences and diaspora communities that the Court’s actions represent “pure” or “undiluted” antisemitism.
That said, claims that the OtP’s communications to date have been “conciliatory” or aimed at “assuaging Israel’s concerns” must be viewed skeptically. The manner of Israeli engagement with the Court must be decided only after carefully considering the substance of the Prosecutor’s claims that she has acted and will continue to act “independently, impartially and objectively, without fear or favor”.
Much of the evidence points to the opposite conclusion.
For instance, throughout the Preliminary Examination stage, the Prosecutor alleges that her Office “engaged with a wide array of stakeholders, including in regular and productive meetings with representatives of the Governments of Palestine and Israel, respectively.” She also claims that she investigates “incriminating and exonerating circumstances equally” and engages in a “thorough, independent and objective assessment of all reliable information available to her Office”.
There is little evidence that, aside from meetings with the Israeli government, the Office engaged significantly with stakeholders representing the Israeli point of view. Based on photos and other materials released by the OtP, as well as information published by NGOs, it appears her engagement was almost exclusively with antiIsrael partisans. One Israeli NGO has even filed a complaint with the Court’s Independent Oversight Mechanism against the OtP for the Office’s failure to respond to its communications or take its information into account in its preliminary examination reports.
Similarly, much of the factual information and legal narratives promoted by the Prosecutor appear to be based extensively on those provided by biased UN bodies, such as the Human Rights Council, and Palestinian NGOs, many of which are linked to the Palestinian Popular Front for the Liberation of Palestine terrorist organization and which reject the legitimacy of Israel within any borders. (These NGOs are generously funded by the EU and European governments.)
Moreover, while the Prosecutor has the authority to investigate all actors in the Situation, her brief to the PTC, the PTC decision, and her summary of Preliminary Examination Findings linked to her March 3 statement only mentioned alleged crimes committed by “Israeli authorities,” Hamas, and “Palestinian armed groups,” while notably omitting “Palestinian authorities.” “Palestinan authorities” are also omitted from the ICC’s recent Q&A on the PTC Chamber decision.
Exclusion of investigation of “Palestinian authorities”—i.e., individuals connected to Fatah or the PA—is a real possibility. Indeed, while discussing how the OtP approaches the issue of case selection generally, two of Bensouda’s deputies, during a March 9 webinar on Prosecutorial Discretion hosted by the Leuven Centre for Global Governance Studies, repeatedly emphasized that due to limited resources, capacity, and cooperation, in some situations only one side will be investigated and prosecuted.
The absurdity of the very premise of the investigation to date, focusing on Israeli conduct as the primary target of scrutiny (the vast majority of the incidents identified by the OtP as constituting violations of the Rome Statute focus on acts allegedly committed by Israel), must also be stressed. The IDF, for its part, is guided by rule of law and has been at the vanguard globally of promoting adherence to and investigations of violations of the laws of armed conflict. In contrast, Hamas (and other Palestinian armed groups) is a genocidally motivated terrorist group, which as its core mission targets Israeli civilians while endangering its own population—not only because it doesn’t care whether they get hurt, but because they actually want to induce greater Palestinian casualties by Israel. The process by which placing greater focus (or even equal focus) on Israeli actions will “guarantee” the “pursuit of peace and justice” is entirely unclear.
The fact that the Prosecutor chose to move ahead in this case is also perplexing and weighs against her claims against impartiality given the admission in her brief to the PTC that the case is “novel and highly complex”. As Bensouda has acknowledged repeatedly, her Office has limited resources and a heavy workload. One of her senior deputies at the March 9 webinar characterized the situation as at a “breaking point.” In addition, in a speech she made to the Irish Institute of
European Affairs on February 17, Bensouda noted that her office actually increased the team (number and identities unknown) to work on this investigation.
Yet Israel is not an ICC member, and there are numerous jurisdictional, legal, and factual obstacles that stand in the way of a successful prosecution in this situation. The legal theory upon which the Prosecutor chose to proceed was invented out of whole cloth. Moreover, it involved rewriting the clear terms of the Oslo Accords that bar the delegation by Palestinians of any criminal jurisdiction over Israelis whatsoever.
Given that the ICC has fixed resources, can only handle a handful of cases, and that the Court in the Prosecutor’s own words is not a panacea, it is bizarre that she chose to move forward in a situation involving one of the world’s most intractable and controversial conflicts, and did so on so shaky a legal and factual foundation. These actions do not suggest impartiality but rather a highly motivated desire to pursue the prosecution of Israelis.
In addition, claims that the OtP and the Chamber are “not determining whether Palestine fulfilled the requirements of statehood”, “prejudging the question of any future borders”, or taking “no position” on issues that “remain to be determined in bilateral discussions between Israeli and Palestinian authorities in the context of a negotiated agreement” stretches credulity. It is likely that future UN resolutions, reports, parliamentary reports throughout Europe, and other bodies will seek to adopt the Court’s legal and factual premises, and there is no doubt that the PA will now look to position the PTC Chamber’s preliminary determination as the minimum stance in any potential peace negotiations.
These are not the actions of a body acting objectively or impartially.
Finally, a word must be said about the claim of antisemitism. Several commentators appeared to be most incensed by the description by Israeli government officials of the Prosecutor’s decision as “pure antisemitism.”
While accusations of antisemitism are perhaps overwrought, it is clear that the Prosecutor has chosen to rely solely on the Palestinian narrative, while obscuring Jewish rights and claims, often offensively so. Consider, for example, her choice to include “East Jerusalem,” the location of Judaism’s holiest sites, in the investigation; her intimation that activity in the Jewish Quarter of the Old City could be construed as a “war crime”; or her nearly six dozen citations in her brief to an anonymous and completely tendentious 1979 “history” of the ArabIsraeli conflict sourced to the Committee on the Inalienable Rights of the Palestinian People, founded alongside the 1975 discriminatory “Zionism Is Racism” General Assembly resolution, and considered to be one of the most antisemitic bodies at the UN. One might expect a Prosecutor who purports to act without bias and with sensitivity to the concerns of victims to have attempted to be more careful and balanced in her presentation of the facts of the case.
A case can certainly be made that the Prosecutor has run afoul of the International Holocaust Remembrance Association working definition of antisemitism, which notes that “applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation” is a form of antisemitism. While there may not be a double standard reflected by the Prosecutor’s failure to open investigations relating to Syria or the Muslim Uighurs in China, it is incontrovertible that the Court has not investigated the issue of settlements in Cyprus, Ukraine, or Georgia, though she has had the ability to do so for years. As Professor Eugene Kontorovich has shown, settlements in these areas are much more intense in terms of territorial area and demographic scale and scope. During her February 17 speech to the IIAE, Bensouda claimed a decision on opening an investigation for Cyprus is imminent, so we will see how she chooses to proceed.
International institutions, including the ICC, must earn their credibility. Their mere existence is not enough to garner international stature, and fervent declarations of impartiality without demonstrated proof are not enough to create and maintain institutional integrity.
In this context, it may well be that the political calculus and a close review of the procedural history will indicate that engagement by Israel with the ICC is futile and may even be counterproductive.
At the very least, prior to any cooperation, Israel should require full transparency from the Prosecutor. This includes disclosure of the source of all funding, both public and private (if it exists); whether any funds were specifically earmarked by donors to go toward the “Situation in Palestine”; and a full list of all individuals hired by or consulted by the OtP to work on the investigation. In addition, any sharing of information and assurances made by the OtP must be in writing, binding the Prosecutor to honor those promises.
Israel has had a fraught relationship with international bodies and investigatory mechanisms, particularly when they are undergirded by actors exploiting such mechanisms for destructive political agendas. For Israeli policy makers, many factors and scenarios need to be weighed carefully before deciding on the next steps.
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1. Statement of ICC Prosecutor, Fatou Bensouda, respecting an investigation of the Situation in Palestine (icc-cpi.int). Under Article 18(1) of the Rome Statute (the ICC’s governing instrument), the Prosecutor may also notify on a confidential basis “all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned.”
2. Yael Ronen, “The ICC Prosecutor’s statement on the Situation in Palestine: A Hand Stretched forth in Friendship?,” EJIL: Talk!, March 12, 2021 https://www.ejiltalk.org/the-icc-prosecutors-statement-on-the-situation-in-palestine-ahand-stretched-forth-in-friendship/; Kai Ambos, “’Solid jurisdictional basis’? The ICC’s fragile jurisdiction for crimes allegedly committed in Palestine,” EJIL: Talk!, March 2, 2021, “Solid jurisdictional basis”? The ICC’s fragile jurisdiction for crimes allegedly committed in Palestine – EJIL: Talk!; Eli Bar-On, “The Involvement of the International Criminal Court in the Israeli-Palestinian Conflict: A New Chapter,” IDC Institute for Policy and Strategy, March 14, 2021, https://www.idc.ac.il/en/research/ips/pages/insights/eli-bar-on-14-3-21.aspx; Nick Kaufman, “The ICC Prosecutor Was My Superior. It Is Unfortunate That Netanyahu Should Speak of Antisemitism,” Ha’aretz, March 10, 2021, https://www.haaretz.com/opinion/.premium-the-icc-prosecutor-was-my-superior-netanyahu-shouldn-t-speak-of-antisemitism-1.9605292.
3. Ronen, “The ICC Prosecutor’s statement.”
4. Mahmoud Abbas, “The Long Overdue Palestinian State,” New York Times, March 16, 2011, https://www.nytimes.com/2011/05/17/opinion/17abbas.html.
5. Anne Herzberg, “NGO ‘Lawfare’: Exploitation of Courts in the Arab-Israeli Conflict,” Second Edition 2010, https://www.ngo-monitor.org/nm/wp-content/uploads/2010/12/lawfare-monograph.pdf
6. Anne Herzberg, “FAQs: The International Criminal Court and the ‘Situation in Palestine,’” February 16, 2021 (updated on March 04, 2021), https://www.ngo-monitor.org/reports/faqs-icc-situation-palestine/.
7. Characterizing statements by Israeli officials as “whataboutism”, “tirades” or “Pavlovian”, as done by some commentators, is too dismissiveand avoids addressing the substantive claims being advanced.
8. Situation in Palestine | Summary of Preliminary Examination Findings (icc-cpi.int). According to rulings by the Appeals Chamber, the Prosecutor is required under article 54(1)(a) to “extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally”. Id. Para 814 I Should Israel Cooperate with the ICC?
9. NGO Monitor, “Bias in ICC Prosecutor Bensouda’s Meetings and Citations, January 15, 2020 https://www.ngo-monitor.org/reports/bias-in-icc-prosecutor-bensoudas-meetings-and-citations/
11. See e.g., 2019 Preliminary Examination Report, para. 214; 2018 Preliminary Examination Report paras. 262-66, 283; 2017 Preliminary Examination Report, paras. 60, 62, 74, 77; 2016 Preliminary Examination Report, paras. 127, 130, 132, 133, 137, 140, 142, 144; 2015 Preliminary Examination Report, paras. 63, 67, 69, 71; Situation on Registered Vessels of Comoros, Greece and Cambodia Article 53(1) Report, 6 November 2014, paras. 11-12, 14.
12. Situation in Palestine | Summary of Preliminary Examination Findings (icc-cpi.int)
15. Statement of ICC Prosecutor, Fatou Bensouda, respecting an investigation of the Situation in Palestine (icc-cpi.int)
16. If the Prosecutor is really acting impartially, she should not hesitate to disclose the identities of these individuals. According to international fact finding standards, persons conducting an investigation “should be, and should be seen to be, free of commitment to a preconceived outcome.” Thomas M. Franck & Scott H. Fairley, “Procedural Due Process in Human Rights Fact Finding by International Tribunals,” 74 American journal of International Law 311 (1980); International Bar Association Lund-London Fact-Finding Guidelines, https://www.ibanet.org/Fact_Finding_Guidelines.aspx.
18. While the PTC Decision left open the possibility to challenge territorial jurisdiction and the applicability of the Oslo Accords at later stages, presumably when there is a specific case before the Court, bodies like the UN will be unlikely to wait for such claims to be tested.
19. The ICC, settlements and the Orwellian denial of Jewish presence – The Jerusalem Post (jpost.com)
22. Though perhaps j ust as the OtP had the will to engage in highly novel and creative lawyering to create a basis for the Palestinian Authority to accede to the Rome Statue, there could be a way for her to proceed in those other situations.
23. Eugene Kontorovich, “Unsettled: A Global Study of Settlements in Occupied Territories,” 9 Journal of Legal Analysis 285 (2017), https://academic.oup.com/jla/article/9/2/285/4716923.
About the author
* Anne Herzberg is the Legal Advisor of NGO Monitor and the UN Representative for the Institute for NGO Research. This article was published on March 25, 2021 by the Begin-Sadat Center for Strategic Studies, Bar-Ilan University, Mideast Security and Policy Studies No. 190.