Last Friday a three judge panel of the International Criminal Court released a 2-1 opinion concluding that the ICC prosecutor has jurisdiction to investigate war crimes in Gaza and the West Bank. Palestinian leaders were pleased. Israel reacted angrily, with Prime Minister Netanyahu vowing to ‘fight this perversion of justice with all our might’ and saying ‘When the ICC investigates Israel for fake war crimes – this is pure antisemitism.’ You can read coverage from The Jerusalem Post or PBS. The actual text of the ICC decision is here.
The Israeli government’s extreme antipathy to the ICC is unfortunate. This recent decision was legally sensible, and need not be construed as anti-Israel at all.
The ICC has jurisdiction only over states that have acquiesced to its authority by signing its founding document, the Rome Statute. Israel refuses to do this, afraid that the ICC will single it out unfairly as is done at the United Nations. In 2015, the Palestinian Authority signed the Rome Statute with the goal of bringing ICC scrutiny to its conflict with Israel. Since then the ICC’s chief prosecutor, Fatou Bensouda, says that she has found a reasonable basis to believe war crimes may have been committed in the Palestinian territories. But she does not want to invest resources in a full investigation absent a determination that the ICC does in fact have jurisdiction over that territory. Hence, she asked a three member panel of ICC judges to issue this ruling on that question.
The Palestinian Authority says that it is a state for the purpose of signing the Rome Statute, and its papers ratifying the Rome Statute were duly accepted by the UN Secretary General. Therefore it has the right to request an ICC investigation as any other signatory to the statute can. Furthermore, the Palestinians claim that if their sovereign right to sign treaties is in any way lacking, this is due to Israel’s occupation, and Israel should not be able to evade war crimes investigations by exploiting technicalities gleaned from denying potential victims their political rights.
Israel says that the Palestinian Authority is not actually a state. Since the PA does not have full sovereignty over its territory, but only partial sovereignty shared with Israel, it does not qualify to sign the Rome Statute over Israel’s objection. Furthermore, Israel says that should the ICC conclude that the Palestinian Authority joined the Rome Statute while Israel did not, the ICC would then need to determine a border between Israel and the Palestinians. International borders must be decided by negotiations between the affected parties and the ICC would be completely overstepping its mandate sitting in the Hague and making up borders to resolve a protracted conflict in the Middle East.
The two judge majority on the ICC panel decided that the Palestinian Authority does in fact have sufficient standing to sign the Rome Statute (the third judge disagreed.) The basis of this majority opinion was language used in various UN resolutions and declarations. Israel will gripe here that it has opposed most of these UN resolutions over the years as well, so this ICC determination is really just UN anti- Israel bias coming back again to bite it. That may be so, but the general sentiment that the Palestinians are a distinct political body with the right to manage their own international affairs is hardly outrageous.
As for drawing borders, the two judge majority noted that the ICC does not have to resolve potential border disputes that may arise in order to claim jurisdiction over an incident. The crimes Bensouda alleges were widespread in Gaza and the West Bank, which is clearly the Palestinian’s territory. So the judges used the language from UN resolutions, ‘territory occupied by Israel since 1967’, as the place of the Palestinian Authority. They make it clear that this is not intended to prejudice potential borders of a future Palestinian state.
What It Means for Israel
It is unclear how the ICC will proceed. Bensouda’s term as prosecutor ends this spring, and her replacement has not been decided. The new prosecutor will have to determine that the alleged war crimes in the Palestinian territories are serious enough to merit ICC investigation and that sufficient evidence can be found. But even if the investigation continues, there are several ways this may benefit Israel.
Palestinian War Crimes
Bensouda has made it abundantly clear that she will investigate all sides of the Gaza conflicts, and her successor should be expected to as well. This will include Hamas, and war crimes perpetrated by Hamas are obvious and undeniable. Firing rockets into Israeli cities is a clear violation of the prohibition of targeting civilians in war. Hamas’s defense, that crude rockets which cannot be precisely aimed are the only weapons at its disposal, is not a valid excuse and will be summarily brushed aside by the ICC. Hamas’s firing of rockets from schools and hospitals, storing weapons in houses, and in general its use of human shields will also be investigated. These crimes are what cause Israel so much suffering, and to have the ICC shine a light on this would benefit Israel politically and also militarily if it deters Hamas from continuing to do this.
The Complementarity Principle
An important limitation on the ICC’s jurisdiction is that it is meant to compliment counties’ legal systems, not replace them. So the ICC does not have jurisdiction over a matter that a country’s own legal system has already investigated on its own. The ICC steps in only when a country’s own legal system is unwilling or unable to investigate possible war crimes.
Israel has a strong legal system, and Israel’s military has systems in place to investigate and punish war crimes committed by its soldiers. In fact, the Israeli military conducted dozens of investigations into its soldiers’ actions in Gaza during the time in question. Even if the ICC prosecutor does not agree with the results of a country’s investigation, or thinks the country’s investigation was in some way inadequate or lacking, the principle is clear that the ICC prosecutor may not substitute her judgment for the ruling made by the subject country. Because of this, Israel’s ‘nightmare scenario’ of the ICC investigating vast numbers of rank and file Israeli soldiers is likely impossible.
The Palestinians, however, do not have a strong, independent legal system. Hamas does not seem to have a transparent mechanism for disciplining its soldiers should they commit crimes. So the ICC may be the only means of shedding light on many of the atrocities committed by Hamas and potentially bringing those perpetrators to justice.
Scrutiny of Israel
Israel’s main objection, it seems, is that if the ICC goes ahead it will scrutinize how Israel conducted the war in Gaza. To be fair, no country welcomes this willingly. Israel’s military and government feel that in firing rockets at Israeli cities from close proximity to its own civilians, Hamas gave Israel no choice but to respond and no good way to do it. So Israel made impossibly difficult moral choices, and no one who wasn’t faced with the same dangers and responsibilities has the right to judge.
Unfortunately, though, one cannot accuse others while at the same time refuse to be questioned oneself. Hamas also claims that it is faced with impossible choices and no one not suffering in the Gaza strip has the right to judge it. If Israel wants the world to condemn Hamas’s conduct, it inevitably invites that same scrutiny upon itself.
If Israel wants to claim that Hamas perpetrated war crimes against it while in return Israel did not, Israeli leaders can say so. If Israel maintains that civilian deaths in the Gaza strip were the unintended consequence of legally targeting Hamas military targets, and that harm to civilians was proportionate to the necessity of legal military strikes, so be it. Israel has every right to make that case. And if that is actually the truth Israel should have little to fear from ICC investigation, whereas Hamas without a doubt is guilty of war crimes.
The point is that Israel, as a victim of constant, egregious war crimes committed against it by Hamas, should stand to benefit from an investigation into war crimes in Gaza. Angry refusal only makes it look like Israel is not confident of its conduct and that it has something to hide. And if it turns out to be true that the Israeli military has committed war crimes, we can’t demand a pass while condemning others or demand that only others be held to account.
In the fifth chapter of the book of Numbers, the Torah details how a husband who suspects his wife of adultery can have her fidelity verified by compelling her to drink a miraculous potion containing water into which the ink of a scroll containing God’s name has been dissolved. Our Rabbis explain in the Talmud (Sota 47b) that the waters are only effective in checking a woman if her husband is himself free of sin. But if the husband has sinned, he cannot invoke miracles to probe his wife.
There is no such thing as scrutiny that is one-sided. Whoever makes accusations against others will have their own conduct questioned as well. Israel is certainly right to demand the world hold Hamas to account for the war crimes it commits unabashedly in broad daylight. But this makes it even more critical that Israel be certain its own actions are beyond reproach.