1 January 2020
Guest Article published in Middle East Monitor here by Guernica 37's Toby Cadman and Carl Buckley
On 20 December, the Prosecutor of the International Criminal Court in The Hague, Fatou Bensouda, made an important announcement on the conclusion of the preliminary examination of the situation in Palestine and sought a ruling on the scope of the Court’s territorial jurisdiction. In her statement, Bensouda declared unequivocally that there is a reasonable basis to proceed with an investigation into the situation in Palestine and that she is satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip; that potential cases would be admissible and there are no substantial reasons to believe that an investigation would not serve the interests of justice.
She further made clear that as there has been a referral from the State of Palestine, there is no requirement to seek the Court’s authorisation to open an investigation. However, she pointed out that, “given the unique and highly contested legal and factual issues attaching to this situation, namely, the territory within which the investigation may be conducted,” she has sought a ruling from the Court on the territorial limits of her jurisdiction.
This decision has received mixed responses. Some international legal commentators have stated that it is wholly unnecessary and is pandering to political considerations, whilst others have stated that it is a wise move to address a highly controversial subject. The State of Palestine has responded positively, albeit critical that it has taken 5 years to reach such a position.
The response from the State of Israel has been less than welcoming of the decision. Prime Minister Benjamin Netanyahu has accused the ICC of anti-Semitism. He has challenged the jurisdiction of the Court on a number of bases. First, it is contrary to the founding principle of the Rome Statute regarding complementarity. His argument is that Israel has a functional judicial system and that Israel is — and this is an oft repeated claim — the only democracy in the Middle East. Second, Palestine is not a State. The irony here should not be lost. The Netanyahu administration has long criticised Palestine and its supporters for refusing to recognise Israel as a State and it now challenges the ICC’s jurisdiction of the Occupied Palestinian Territory by refusing to recognise it as a State. Third, he accuses the ICC Prosecutor of hypocrisy for not seeking to prosecute Iran, Turkey and Syria. Netanyahu described the Prosecutor’s decision as a “black day for truth and justice” and a “baseless and scandalous decision.”
Israel’s Attorney General, Avichai Mandelblit, issued an opinion challenging the ICC’s jurisdiction by affirming that, “The state of Israel is a democratic, law-abiding country, which is committed to honouring international law and humanitarian values, and acts to promote them.” There have been other, less diplomatic statements, by members of the Israeli government calling for the dismantling of the Palestinian Authority. Mandelblit declared that the Palestinian Authority clearly does not meet the criteria for statehood under international law and the Rome Statute, that Israel has a valid legal claim over the same territory and that it the ICC move is contrary to the peace negotiations.
Despite these strong statements it is quite clear that the Prosecutor considers that there is a sound basis to establish jurisdiction over the Occupied Palestinian Territory. She further considers that there is a credible basis to conclude that war crimes have and continue to be committed that warrant a full investigation. Whilst the question of jurisdiction is ordinarily dealt with at trial, and some legal commentators have made this very point, Bensouda has very sensibly taken the position as a preliminary issue, and invited submissions from other interested groups on the question of jurisdiction in order to ensure that significant resources are not spent investigating a situation in which the court may restrict the limits of her jurisdiction.
It is worth noting here that the Prosecutor’s jurisdiction is limited to the territory, namely the Occupied Palestinian Territory, and crimes committed by citizens in the Occupied Palestinian Territory. That means that it is not directed against any person or any group. The Prosecutor is at liberty to investigate and prosecute any person who is alleged to have committed a crime within the jurisdiction of the Court. In this regard it is likely that she will look into alleged crimes committed by Israeli forces, Palestinian resistance groups and any other groups engaged in hostilities. She will not, contrary to the strong statements from the Netanyahu administration, target only Israeli suspects and she will do so independently and impartially.
Human beings generally are bound by rules, customs and laws. We submit ourselves to the rule of law as we acknowledge that there must be a mechanism in place for us to seek accountability for a wrong that we may have suffered, whether physical, financial or mental.
As countries, states and peoples have developed throughout history, such rules and laws vary to a greater or lesser extent, but the universal theme that flows throughout all is the notion of justice, a concept synonymous with fairness. Hence “lustitia” — Lady Justice — is depicted as blindfolded.
A problem arises however where a national or domestic system of justice “fails”, breaks down or simply isn’t equipped, for any number of reasons, to address the most serious of wrongs; those crimes that may be committed as a result of armed conflict, or those crimes that are committed at the state level as part of a state policy or organisational plan.
This very problem was identified in the aftermath of the Second World War. Thus, starting with the International Military Tribunals in Nuremberg and Tokyo, a goal of international justice was set in motion. This was achieved in 1998 with the establishment of the International Criminal Court (ICC), the first permanent tribunal the purpose of which is to provide justice for atrocity crimes, such as genocide, crimes against humanity and war crimes, where national and domestic systems fail to do so.
Over the years the ICC has had its detractors, being criticised for seemingly only investigating African nations, or, on the face of it, seemingly ignoring clear areas of conflict such as Syria, Yemen and Myanmar. Further, it has been seen as politicised, given that many decisions are subject to the whim of the UN Security Council and its five permanent members who cannot be said to be acting objectively and in ignorance of domestic interests.
The ICC has now come under further scrutiny and criticism following its decision to consider a question of territorial jurisdiction with regard to the situation in Palestine, a situation that is undoubtedly unique. However, the decision taken by the Prosecutor, rather than being evidence of a politically motivated decision as has been alleged by some, is quite the opposite. It does, in fact, demonstrate the essential ingredient of independence that the Prosecutor has always shown.
For instance, the Prosecutor refused to open an investigation following allegations into the 2010 attack on the Gaza Flotilla, in which members of the Israel Defence Forces killed nine activists on board the Mavi Marmara, on the basis that it did not reach the gravity threshold required for such investigation. Conversely, despite there being strong objections from some quarters, including the appalling decision by the United States to revoke her visa, Bensouda has maintained her position that an investigation into Afghanistan is warranted.
In referring a question of jurisdiction to the Court, the Prosecutor has underpinned her independence and impartiality, and confirmed that she is bound by a ruling of the Court.
The allegations of anti-Semitism and political motivation are unwarranted and undignified. Criticisms of politicisation, jurisdiction or any other issue which the detractors of the ICC seek to highlight, only detract from the salient issues that crimes prohibited by international law, and by the Rome Statute, have been committed and that victims on all sides of the conflict have the right to seek justice in a court of law through a credible and transparent process.
It is quite right that the ICC is a court of last resort and its foundational principle is complementarity. In this regard, it is important to highlight three points: it is beyond question that Palestine is under occupation and any argument to the contrary is simply ludicrous; it is beyond question that settlements in an occupied territory and the transfer of population into the occupied territory are unlawful as a matter of international law; and it is beyond question that Palestine is a State Party to the Rome Statute and has referred the situation to the ICC.
There can be an academic argument about sovereignty and historical claims to land. However, settlements are unlawful; the deliberate targeting of civilians — the shooting of members of the press, of healthcare professionals and children, to name but a few, for example — is unlawful and constitutes war crimes and/or crimes against humanity, much the same as the firing of rockets into civilian neighbourhoods constitutes war crimes and/or crimes against humanity.
It is on that last point that accusations of politicisation fail; if the Prosecutor was motivated by politics, the investigation wouldn’t be looking at “all sides”, it would target one specific area, but it does not. Bensouda has been quite clear that the actions of Hamas and Palestinian resistance groups will be investigated as well as the actions of Israel and the IDF. Again, therefore, she is showing herself to be independent, and to be blind to outside factors that may seek to influence her position.
This is not, as Netanyahu claims, a “black day for truth and justice.” On the contrary, the statement by ICC Prosecutor Fatou Bensouda is long overdue and much needed. As the well-known quotation states, the arc of the moral universe is long, but it bends toward justice.
Toby Cadman and Carl Buckley are barristers at Guernica 37 International Justice Chambers in London.
Guernica 37 International Justice Chambers has submitted an application for leave to file an amicus curiae brief with the Pre-Trial Chamber on the issue of jurisdiction of the Occupied Palestine Territory.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.