ICC's Israel stance betrays court's mandate, endangers western nations

Alex Ryvchin, Australian Institute of International Affairs

In 2016, the International Criminal Court (ICC) was facing a crisis. The African Union which is made up of 55 African states had voted by a huge margin for a mass withdrawal from the ICC amid complaints that since its formation in 2002, the Court had only pursued cases concerning alleged war crimes in Africa. Indeed, questions about the necessity of a permanent Court as opposed to the ad hoc international tribunals established to prosecute war crimes in Rwanda and Yugoslavia, had become increasingly difficult to fend off given that in its first ten years, the ICC had spent nearly $1 billion USD and employed over 700 staff and delivered a single trial, that of Congolese militia leader, Thomas Lubanga.

The ICC had also failed to recruit global powers to the Court, limiting its prestige. Russia, China and India never signed the Rome Statute, the treaty which established the ICC. The United States under Bill Clinton did sign, but with a major caveat. President Clinton observed that while the legacy of the Nuremburg Trials necessitated collective judicial action to bring war criminals to justice, the treaty, observed President Clinton, had “significant flaws” allowing the Court to “claim jurisdiction over personnel of states that have not ratified the treaty.”

President Clinton warned of the possibility that US officials would face “unfounded charges” and that the Court was susceptible to “politicised prosecutions”. On the basis of these unresolved concerns, the treaty was never presented to the Congress for ratification and subsequent US Presidents George W. Bush, Barack Obama and Donald Trump maintained the US position of not joining the Court or accepting its jurisdiction.

President Clinton had feared that rather than the blind pursuit of justice, the ICC would go the way of other key international organs like the UN General Assembly and Human Rights Council, which notwithstanding the finest of motives and founding intentions, had become tools of Cold War era collusion and political point-scoring.

The mandate of the ICC was always intended to be narrow. Generally, its jurisdiction is triggered when a matter is referred to it by the UN Security Council or when alleged genocide, crimes against humanity, war crimes or crimes of aggression occur on the territory of an ICC member state or when a citizen of a state that is party to the ICC is accused of such a crime. The ICC was conceived as a tribunal of last resort to be used only when the country having jurisdiction over an alleged international crime cannot or will not deal with the matter.

Kenneth Roth, the Executive Director of Human Rights Watch, a consistent supporter of the Court, described the Court as “a last resort for victims and survivors who cannot find justice in their own country … [because of] ruthless national leaders that threaten, corrupt, or compromise judges and prosecutors at home.”

Affirming the limited scope of the ICC, its first Chief Prosecutor, Luis Moreno-Ocampo asserted that “whenever there is genuine State action, the Court cannot and will not intervene … and that States bear the primary responsibility for investigating and prosecuting war crimes, consistent with international law.”

Ocampo’s remarks were intended to assuage growing fears among western nations that the Court would eventually maliciously pursue leaders who were democratically elected, accountable and scrutinised by independent justice systems.

A year earlier, in a direct challenge to the ICC and amid growing fears that US political leaders and ex-servicemen and women could face arrest abroad, President Clinton’s successor George W. Bush signed the American Service-Members’ Protection Act into law, which authorised the President to use “all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court”.

The Court’s decision to pursue Israel is precisely the sort of betrayal of the ICC’s mandate that President Clinton and his successors foresaw, and it will have implications far beyond exposing Israeli citizens to arbitrary detention abroad. The policymakers and military personnel of all western countries engaged in counterinsurgencies and fighting prescribed terrorist organisations will now be vulnerable to similar measures.

The recent pre-Trial Chamber decision focused on preliminary questions of jurisdiction that have split legal opinion, including among the judges of the pre-Trial Chamber itself. Putting the fundamental issue of jurisdiction aside, there is no substantive aspect of the Israeli-Palestinian conflict that merits examination by a court of last resort concerned with mass crimes.

Despite the intractability of the Israeli-Palestinian conflict and its capacity to produce bouts of violence and periodic wars, there are no credible allegations of systematic mass atrocities. Indeed, the combined Israeli and Palestinian death totals, including civilian casualties, from the three Hamas-Israel wars fought in Gaza and southern Israel between 2008 and 2014, stands at roughly 3,500.

By contrast, around 100,000 have been killed in Yemen since 2014 and some 400,000 have died since the beginning of the Syrian Civil War. Conflicts in Africa have featured the raising of child armies, the annihilation of whole ethnic groups, mass rape as a weapon of war, and death tolls on a truly incomprehensible level.

The current ICC Prosecutor’s pursuit of Israel would therefore significantly lower the Court’s gravity threshold (Art. 17) and violate its mandate to deal with “the most serious crimes of international concern” (Rome Statute preamble and Art. 1).

The focus on Israel also represents a discarding of the “court of last resort” doctrine on which the ICC was founded.

Israel’s Military Advocate General (MAG) has wide powers of investigation and prosecution which have been used to prosecute Israeli military personnel. After the 2014 Gaza conflict, the Israel Defence Force’s investigations into some 360 alleged criminal incidents were reviewed by the MAG, and 24 of them were referred for criminal prosecution, leading to a number of convictions. Israel’s MAG is subject to the supervisory jurisdiction of the Attorney General, which in turn is subject to rulings by Israel’s Supreme Court. Critics of Israeli rules of engagement in Gaza or of security decisions such as retributive house demolitions in the West Bank or the route of Israel’s security barrier have virtually unfettered access to Israel’s legal system. Cases are regularly brought before Israel’s Supreme Court not only by Israeli citizens but also by Palestinians living in the West Bank, NGO’s and human rights organisations.

This record is incompatible with any suggestion that Israel’s accusers have no recourse other than the ICC.

Israel is far from alone in expressing concerns about the ICC. In a bipartisan letter signed in May last year by 67 US Senators, including now-Vice President Kamala Harris, the signatories warned that the Court’s intended prosecution of Israel “constitutes a dangerous politicisation of the Court and distorts the Court’s purposes … as a court of last resort.” The letter further noted that the Court “does not enjoy legitimate jurisdiction in this case” and that the decision to prosecute Israel violates the Court’s own rules against “prosecuting cases against a country that has a robust judicial system willing and able to prosecute war crimes of its personnel.”

The Court’s investigation of Israelis will bring further punishment by process, associating Israel with accusations of war crimes whether or not such accusations have any basis in fact.

Following the “Jenin Massacre” libel in 2002, when Palestinian officials accused Israel of killing “more than five hundred people” in mass graves, committing “genocide” and “body snatching”, persistent media coverage, complementary NGO reports and parliamentary speeches seared into the public consciousness a perception of Israel as criminal, illegitimate and uniquely deserving of punishment. Rather than serving the interests of justice, this only advanced the decidedly political motive of hardening public and policy-making opinion against Israel and building sympathy for the Palestinians.

Ultimately, the UN and the Palestinians themselves conceded that the true death toll in Jenin had been fifty-two Palestinians, virtually all combatants, along with twenty-three Israeli soldiers who had engaged in street-to-street combat to minimise the civilian casualties that would have eventuated from the use of artillery or airpower. The allegations of genocide, mass graves and body snatching had been complete fabrications.

Israelis believe that once the shroud of hyperbole and propaganda is lifted, in any fair and open court, they would be absolved again. Whether the ICC is such a fair and open court is highly questionable. What is clear is that ICC’s investigations will result in reputational damage to Israel and impact the freedom of Israeli citizens to engage with the world. In a greater sense, the ICC has now placed itself in conflict with all western armies and political leaders and has challenged the very notion of national sovereignty. The credibility of the ICC will suffer for it as will the genuine victims of mass atrocities the Court is meant to protect and serve.