Hague Criminal Court Has No Jurisdiction Over Israeli-Palestinian Conflict, Army’s Top Lawyer Says

Israel and United States launch attack on ICC; military advocate general says Israel has strong legal system and there's no reason for scrutiny from the court

Israeli army's chief military prosecutor, Brig. Gen. Sharon Afek, Israel, May 27, 2019.
Liav Peled

Israel and the United States began what looks like a coordinated legal attack against the jurisdiction of the International Criminal Court in The Hague on Tuesday. The Israel Defense Forces military advocate general, Maj. Gen. Sharon Afek, and the general counsel of the U.S. Department of Defense, Paul Ney, claimed that the court has no jurisdiction to deal with their military conduct.

Afek said that the court has no authority over issues that concern Israel’s conflict with the Palestinians, while Ney accused it of an erroneous analysis of allegations against the U.S. military and also criticized its attitude toward Israel.

>> Read more: Female medic, teen shot in the head: These are the Palestinian deaths the Israeli army is probing ■ ICC prosecutor: Significant progress toward decision about investigating Israeli actions in Gaza, West Bank

The two spoke on the first day of the IDF International Conference on the Law of Armed Conflict, which is taking place in Herzliya this week.

Afek said the Israeli army’s position is that “The International Criminal Court in The Hague has no jurisdiction to discuss matters concerning the Israeli-Palestinian conflict.” He added that “Israel is a law-abiding county, with an independent and strong judicial system, and there is no reason for its actions to be scrutinized by the ICC.”

The military advocate general said that instead of being a last resort for cases of genocide, “the ICC is sidetracked from dealing with the main issues for which it was founded and exceeds its legal jurisdiction.”

This is the first time that Ney spoke at a conference outside the United States in his capacity as general counsel. He used the platform for a reasoned attack against the ICC and for clarifications on the United States’ legal position.

Ney said that “international law is law made by states and for states. Other actors, such as nongovernmental organizations and academics, can play an important role, but states have the primary responsibility for developing and implementing international law.” He added that the law of war must be made by states that conduct military operations and are deeply committed to the rule of law, “like Israel and others represented here.” He also said that Israel was on the forefront of addressing these challenges.

The opinions expressed by the two senior prosecutors are known, but this time, it seems they were more sharply worded. The fact that they spoke on the same platform provided their comments with greater cumulative weight. In general, U.S. President Donald Trump’s administration is adopting a more belligerent and confrontational approach in its dealings with the court, as opposed to the administration of former President Barack Obama.

The Israeli defense establishment believes that if the court decides to act against Israel, the Americans will toughen their attitude toward it even more.

Ney said that “the United States has in no way consented to any exercise of jurisdiction by the ICC. The United States has not consented to ICC jurisdiction to adjudicate allegations against U.S. personnel, nor to the ICC’s evaluation of our own accountability efforts.  We view such efforts by the ICC as a flagrant violation of our national sovereignty and as an attack on America’s rule of law.”

He added that “Like the United States, Israel is not a party to the Rome Statute [which ratifies the ICC’s status regarding member states]. As with the United States, the ICC has ignored the principle of consent to jurisdiction and engaged in an illegitimate effort to review Israeli actions.”

Ney rejected some human rights organizations’ arguments regarding civilian casualties during the military activity of the U.S.-led coalition against the Islamic State in Syria and Iraq. He rejected the assertion, which is supported by some countries, that killing civilians in a military operation is in itself a crime against the laws of warfare.

He stressed that “there is also a failure to distinguish between lawful and unlawful combatants, and in particular between state militaries with robust programs to ensure compliance with the law of war and terrorist groups whose method of warfare is to violate the law of war.”

Ney promised that “The United States will always stand with our friend and ally, Israel.”

At the conference, Afek also referred to the weekly demonstrations taking place along the border of the Gaza Strip. He said that Hamas is sending “thousands of Gaza’s residents to breach the border fence,” and that “This raises substantive legal questions, including what is the appropriate legal framework according to which the army needs to respond. These incidents are taking place on a border between two parties involved in an armed conflict, including both civilians and fighters.”

“They [Gaza’s residents] are led by a terrorist organization that deliberately uses civilians to carry out attacks,” the chief military prosecutor said.

Afek mentioned the petitions against implementing the open-fire protocol during the Gaza demonstrations were rejected by the High Court of Justice in December. This rejection, he said, is proof that Israel “is willing to discuss complex situations of laws regarding the armed conflict.”

He added that the great amount of attention Israel receives from international organizations is subverting the objectives of the court. Afek also referred to the fact that the UN Human Rights Council began an investigation of Israel and the incidents on the Strip border, and said that “The report on the subject, which was submitted by a group that is known for its anti-Israel prejudice, is erroneous and deficient regarding the law, the facts and the methodology.”

As for the Palestinian Authority, Afek said that it is conducting a delegitimization campaign against Israel when it acts resolutely in order to cause the ICC to investigate Israel. “We consider the PA’s efforts as another attempt to abuse these bodies in order to achieve its political intention,” he said. “These efforts undermine the functioning of the court.”
 
In a speech at the Israel Bar Association convention in Eilat on Sunday, the military prosecutor said that “Statements saying soldiers whose lives are in danger are allegedly afraid to shoot before consulting a lawyer are heard from time to time in the public discourse.” During the conference he replied to his critics, saying that “These statements have no grip on reality. A soldier who is in a life-threatening situation and acts to defend himself others is responsible for, is receiving and will continue receiving full backup [from the army].”

In April, U.S. President Donald Trump warned the Hague criminal court against trying to prosecute Israelis or Americans following a complaint by Palestinians, which have called for an ICC investigation of Israel.

"Any attempt to target American, Israeli, or allied personnel for prosecution will be met with a swift and vigorous response," Trump said.

"This is a major international victory, not only for these patriots, but for the rule of law," Trump said in a statement. "We welcome this decision and reiterate our position that the United States holds American citizens to the highest legal and ethical standards." 

Trump's warning came in the wake of the ICC's investigations of Israeli actions in the West Bank and Gaza including the demolition of Palestinian property and eviction of Palestinians from the West Bank and East Jerusalem. 

ICC Prosecutor Fatou Bensouda said in October, 2018 that "extensive destruction of property without military necessity and population transfers in an occupied territory constitute war crimes" under the Rome Statute treaty that established the ICC.