Israel's Bar Association Seeks to Represent Country at War Crimes Hearing in The Hague

Decision is opposed by members who say that the case considered by the International Criminal Court is controversial, claiming the association should stay out of it

Israel Bar Association Chairman Avi Himi
Moti Milrod

The Israel Bar Association will be asking to join upcoming proceedings at the International Criminal Court in The Hague on Israeli actions in the occupied territories if the Israeli government decides to boycott the proceedings.

On Monday, members of the bar’s executive council approved a proposal by bar association chairman Avi Himi to seek standing to appear before the ICC as an amicus curiae, a friend of the court.

That assumes that ICC prosecutor Fatou Bensouda’s request for a preliminary hearing on the court’s jurisdiction over the occupied territories is granted and that the court decides to allow friends of the court in the case.

In December, Bensouda’s office announced that it had found a basis to investigate Israel for its actions in the West Bank and Gaza, but has asked the court to consider the question of its jurisdiction in the Palestinians territories. The prosecutor also found “a reasonable basis to believe that members of Hamas and Palestinian armed groups committed the war crimes.”

The Israel Bar Association has already set up a working group headed by Nick Kaufman, a former senior official in the Jerusalem district attorney’s office, to draft its submission. Kaufman now works as an adviser to national governments on ICC proceedings.

Israel is leaning against participating officially in the proceedings – despite having requested a hearing on the court’s jurisdiction in the case – because its participation would be viewed as recognizing the legitimacy of the court and its proceedings. In such an event, the bar should present Israel’s position, since otherwise, the Palestinian Authority’s arguments would go unanswered, Himi wrote in a letter to his membership.

Most members of the executive council approved his proposal, although a few, both Arab and Jewish, objected, arguing that the case involves a controversial political and legal issue in which the bar should not be involved, and that it was not the bar’s job to represent the state in international forums.

Joint List Knesset member Yousef Jabareen, who is a lawyer, told Haaretz: “The Netanyahu government is trying to promote a political agenda perpetuating and sanctifying the occupation by recruiting the bar association for political purposes.” The bar association’s bylaws state that it will work to defend the rule of law and human rights, Jabareen said. “If so, it ought to side with applying international law, promoting peace and justice and opposing war crimes.”

In December, Bensouda announced that there were grounds for a criminal investigation against Israel and the Palestinians over possible war crimes in the West Bank, Gaza Strip and East Jerusalem. Among other matters, she plans to investigate alleged war crimes during the 2014 Gaza war as well as settlement expansion and Israel’s handling of last year’s Palestinian demonstrations on the Gaza border.

Public Prosecutor Fatou Bensouda
Eva Plevier/Reuters

She first asked the court to decide whether it has jurisdiction over the territories. Attorney General Avichai Mendelblit issued an opinion stating that Israel’s longstanding position is that the court does not have jurisdiction.

The Israeli government has not yet decided whether to boycott the proceedings or send private lawyers to make its case so that its views are at least represented, but it is leaning towards a boycott.

The Israeli cabinet has designated all ministerial discussions of the issue as classified.