This time, Benjamin Netanyahu’s government may have gone too far in defending the actions of its armed forces in Gaza. That may lead to Israel being forced to defend its actions in front of a court of international law.
Israeli Defense Minister Avigdor Lieberman’s claim that "there are no innocents in Gaza," where over 60 Palestinians were killed during demonstrations on 14 May, could not be ignored by the Palestinian leadership. According to the report submitted by Palestine to the ICC, those shot by sniper and artillery fire included six children, a double amputee, a paramedic and 11 journalists.
When we bear in mind U.S. President Donald Trump’s decision to move the American embassy from Tel Aviv to Jerusalem – which was, itself, a flagrant violation of international law – on the same day the shootings took place, the Palestinian leadership knew that it had to take action, if only to remain credible in the eyes of its own people.
Buoyed by the celebrations accompanying Trump’s embassy decision, Prime Minister Benjamin Netanyahu appears to have either overlooked, or not taken seriously, crucial Palestinian diplomatic moves in recent months which, cumulatively, could have spoiled the party.
Palestine joined Interpol, the international police organization, in September 2017; filed an inter-state complaint against Israel for breaches of its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination in April; and just last week,the UN Human Rights Council decided to send a commission of inquiry to examine Israel’s killing of Palestinians along the Gaza border, which was supported by almost all of the Council’s members, except for the U.S. and Australia.
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Now, Palestine’s Foreign Minister Riyad al-Maliki has made a self-referral to the International Criminal Court (ICC) calling on the Prosecutor Fatou Bensouda to open an investigation into crimes committed on the territory of the State of Palestine.
The Palestinian leadership could still take further steps at other international courts and tribunals, such as the International Court of Justice, by calling on the UN General Assembly to request an Advisory Opinion from that Court, if it sees any political advantage in doing so.
Although Israel does not recognize the State of Palestine, over 130 states do; because Israel is occupying the territory of a member state, the ICC has, in principle, jurisdiction.
The self-referral was submitted to Prosecutor Bensouda by officials from Palestine’s Ministry of Foreign Affairs. The State of Palestine has enjoyed observer state status in the UN General Assembly since 29 November 2012, and has ratified or acceded to numerous treaties – including the Rome Statute that set up the ICC.
The U.S., on Israel’s behalf, could make this appeal to international law uncomfortable for the Palestinians. In 2015, the U.S. Congress passed the Omnibus Appropriations Act to bar the provision of economic support funds to the Palestinian Authority if it initiates "an International Criminal Court judicially authorized investigation, or actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians."
Of course, Palestine’s legal advisers could argue that they have not initiated, but only requested, the opening of an investigation; only the Prosecutor can initiate an investigation.
But in any event, the Trump administration has already cut aid to UNRWA, the UN agency tasked with caring for Palestinian refugees, and has attempted to close Palestine’s diplomatic mission in Washington. Those acts removed the financial inducements and privileges that President Obama, and previous U.S. administrations, had granted the Palestinian leadership.
Those carrots appeared to have prevented the Palestinian leadership from pressings its claims against Israel before international courts and tribunals — until now. The threat of further cuts to the Palestinian Authority has clearly not dissuaded the Palestinian leadership from taking this step, which may indicate that they have found other benefactors to keep them afloat.
The decision to make a self-referral to the ICC is significant because it places pressure on the Prosecutor to speed up the third preliminary examination that it is already undertaking on Palestine.
This examination was opened when Palestine joined the court in January 2015, and it is currently in phase two of a four phase process. (Phase 1 consists of an information assessment; Phase 2 focuses on jurisdiction; Phase 3 focuses on potential cases’ admissibility, and Phase 4 examines the interests of justice.)
The text of Palestine’s referral to the ICC discloses that Palestine’s Ministry of Foreign Affairs and its Hague based lawyers had sent to the Office of the Prosecutor three communications, one observation, and 25 successive monthly reports since Palestine joined the court in January 2015.
The referral "requests the Prosecutor to investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing and future crimes within the court’s jurisdiction, committed in all parts of the territory of the State of Palestine." The referral clarifies that, “The State of Palestine comprises the Palestinian Territory occupied in 1967 by Israel, as defined by the 1949 Armistice Line, and includes the West Bank, including East Jerusalem, and the Gaza Strip.”
In her statement on the referral, Bensouda’s Office explained that it ‘does not automatically lead to the opening of an investigation’. She still needs to complete the preliminary examination’s four phases.
To date, all of the self-referrals to the ICC have been made by African countries, including the Central African Republic (twice), the Democratic Republic of the Congo, the Comoros, Gabon, Mali, and Uganda. The court’s ‘exclusive’ focus on the continent has made it an object of criticism – even though John Dugard, one of the lawyers accompanying Palestine’s Foreign Minister at the ICC this week, rightly argued that it is the African states themselves that have made these referrals.
Palestine is the first self-referral to be made by a non-African country, and the second to involve allegations of crimes committed by Israel.
The first was made by the Comoros in 2013 regarding alleged crimes committed by Israel on-board the MV Mavi Marmara, a Comoros-flagged passenger ship carrying peace activists destined for Gaza in 2010. Despite two appeals, the Prosecutor decided not to open an investigation in that case and has closed its preliminary examination.
There’s no reason the failure to prosecute in relation to MV Mavi Marmara should prevent the Prosecutor from carefully assessing Palestine’s allegations of crimes committed in the State of Palestine.
True, the Prosecutor may have difficulties gathering evidence, as Israel is unlikely to cooperate, and is not obliged to cooperate, as Israel is not a state party to the Rome Statute. Though as Palestine’s referral makes plain, the crimes committed in East Jerusalem, the West Bank, and Gaza by Israel "are among the most widely documented in contemporary history."
Those alleged crimes include Israel’s settlement policy, which directly violates the Rome Statute, and was one reason Israel did not sign the Statute in 1998. According to Palestine’s referral, there was a 70 per cent surge in settlement construction between April 2016 and March 2017, compared to the same period a year earlier, as documented by Israel’s Central Bureau of Statistics.
The referral also claims that the Israeli military and settlers killed or injured over 1,100 Palestinian children in 2017 alone. It refers to the 14 May killings in Gaza, house demolitions since 2016, the destruction and appropriation of property, arbitrary detention, including 700 Palestinians held in administration detention that is indefinitely renewable, without charge or trial, based on “secret” evidence kept from the detainees and their attorneys. Other allegations detailed in previous communications, observations, and monthly reports sent to the Prosecutor’s Office, have not been disclosed.
Of the six states, to date, that have made self-referrals to the ICC, the Prosecutor has opened investigations in respect of five of them: the Central African Republic (two investigations), Congo, Mali, and Uganda. One more (relating to Gabon) is still in phase 2.
In refusing to open an investigation into the Gaza flotilla, the Prosecutor considered the alleged crimes “not of sufficient gravity.” But this argument is unlikely to stop the Prosecutor from investigating alleged crimes by Israel in the West Bank and Gaza, which appear to be very grave.
If past practice is any guide, it appears there is a stronger likelihood that the Prosecutor will open this investigation into Palestine’s case. Self-referrals have resulted in trials and convictions in cases relating to the Central African Republic, the Congo, and Uganda, where arrest warrants were issued in 2005 against members of the Lord’s Resistance Army. The suspects remained at large for a decade until one suspect, Dominic Ongwen, surrendered himself to the ICC. His trial is ongoing.
Palestine’s referral to the ICC does not disclose the names of the individuals alleged to have committed war crimes and crimes against humanity in Palestine, but it is likely to include officials at the highest levels of the state including politicians and members of the armed forces.
While the wheels of international justice are slow, they have been set in motion.
It is only a matter of time until the Prosecutor will have to make a decision whether to open an investigation. If she decides that there is sufficient information to warrant the opening of an investigation, she is likely to request the presence of individuals that she will want to question and investigate either because they have been implicated in the commission of crimes, or they have borne witness to such crimes, or have themselves been victims.
It remains to be seen whether Netanyahu will still be the prime minister of Israel, when, and if, the Prosecutor decides to open an investigation. In the meantime, Netanyahu not only has to worry about his legal troubles at home, but also potential legal troubles abroad that may arise in the not too distant future.
He should be safe for the time being - since he is entitled to immunity from criminal jurisdiction under customary international law as head of the Israeli government. Israel is not party to the Rome Statute and could argue that it is not bound by the provision in the Statute which removes Heads of State immunity for crimes under the Statute. Palestine’s lawyers would argue otherwise: that Heads of State do not enjoy immunity if they are responsible for committing crimes under the Rome Statute. They would argue that the provision in the Statute that removes Heads of State immunity for war crimes and crimes against humanity reflects customary international law, which is binding on all states, including Israel, even though Israel has not ratified the Statute.
Lower ranking members of Israel’s armed forces, and former government officials, would not, though, be immune from criminal jurisdiction under international law.if the ICC eventually issues a warrant, any state party to the Rome Statute could apply that warrant to named Israelis if they visit their territory.
How could Israel protect them? It might confer diplomatic status on former officials by giving them ambassadorial positions in non-state parties or promote officials to senior positions in government.
In one infamous case, the United Kingdom granted former Israeli official Tzipi Livni "special mission" immunity, even though she was no longer serving in government.
Given that 123 states are party to the Rome Statute, including Palestine, senior Israeli officials potentially implicated in war crimes in Gaza or in Israel’s settlement enterprise will presumably have to plan their holidays carefully. And if the political and legal calculus at home becomes unfavorable, Netanyahu may join that unholy band.
The only satisfaction those Israeli officials may be able to muster then is that an investigationby the ICC would likely target Hamas as well, given its actions during Operation Protective Edge in 2014. Unlike Israeli officials, members of Hamas, including its senior leaders, do not enjoy immunity - and would be a far easier target for the court.
Victor Kattan is Senior Research Fellow at the Middle East Institute of the National University of Singapore (NUS) and an Associate Fellow at NUS Law. Twitter: @VictorKattan