If the International Criminal Court Lacks Jurisdiction, Is Everything Legal?

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A Palestinian demonstrator scuffles with an Israeli border policewoman near Nablus, March 2021.

Many Israelis are crowding around the national campfire in a spirit of patriotic brotherhood to call the International Criminal Court’s ruling antisemitic. In a detailed opinion, the attorney general stated that the decision to permit an investigation against Israel to proceed is legally mistaken because the court lacks the authority to investigate what is done in Israel or the Palestinian Territories, and therefore the decision is invalid.

Diplomatic activity has garnered support for Israel’s position from jurists in Western countries, including some who fear the ICC in The Hague will set its sights on them too. Anyone in Israel who doesn’t go along with this position is denounced as a traitor. The special status held by Palestinian Foreign Minister Riyad al-Maliki was revoked when he returned from The Hague – as punishment for the Palestinian Authority’s complaint to the ICC. Presumably, the government will take further measures to get the PA to change course and withdraw its complaint.

But even if Israel’s position is legally correct, the ICC’s lack of jurisdiction cannot obscure the crimes being committed in the territories, and Israel cannot absolve itself of responsibility. The court’s jurisdiction is one thing, and the crimes being committed in the territories are another.

Anyone familiar with the reality in the territories and the nature of Israeli rule within them must acknowledge that Israel is running an apartheid regime there (as described in a 2020 legal opinion from Yesh Din: “The Occupation of the West Bank and the Crime of Apartheid”). The occupation and the settlement enterprise are explicitly defined as crimes under international law. So even if the ICC ostensibly does not have the jurisdiction to investigate, by its actions and failures, Israel is still violating international law.

Some cite the ICC constitution, which says that even if something is within the court’s jurisdiction, the court is not supposed to investigate a matter that has already been properly investigated by a local court. Thus, the argument goes, since “there are judges in Jerusalem,” Israel should be exempt from the ICC’s investigations. However, everyone knows that the courts in Israel, including the High Court of Justice, refrain from investigating and adjudicating aspects of the apartheid regime and the question of the legality of the settlements in the territories according to international law.

Moreover, while Israel takes pride in the fact that the High Court has opened its doors to hear complaints of Palestinians from the territories about violations of their rights, this is just for appearances’ sake. In actuality, the court does not impose its authority on the government and require it to properly protect the local population, which under international law is a protected population – i.e., entitled to special protection.

According to numerous, detailed and documented reports by human rights organizations that operate in the territories, the vast majority of cases that are opened regarding complaints filed by Palestinians for bodily harm or property damage are closed without an investigation, or after a failed investigation, and do not reach the Israeli courts. Private and public Palestinian lands are arbitrarily taken from them by virtue of the laws and injunctions of the Civil Administration and by violent Israelis who operate in the territories unhindered. The few court rulings, including from the High Court, stating that private lands that were stolen must be returned to their owners, are not upheld; settler farms are illegally set up, with the state’s protection, adjacent to private Palestinian lands and the owners prevent Palestinian farmers from working their lands; designating an area a military firing zone is often a deliberate method of expelling Palestinian landowners from their lands, but doesn’t prevent Israelis from doing as they please with that land.

The High Court may have opened its doors, but criminal acts by Israelis in the territories continue, day in and day out. Palestinians there are subjected to violence, land theft, the uprooting and burning of trees, restrictions on mobility and being prevented from earning a livelihood, damage to water sources, home demolitions and nighttime military raids on their homes, sometimes in order to arrest children.

The state authorities stand by, and under their patronage, the Palestinians live under a regime of oppression, dispossession and injustice. Hardly anything from this lawless situation reaches the courts in Israel. Under continual attack, the High Court of Justice employs a policy of restraint, and does not appear to have the wherewithal to ensure that the occupation rests upon the pillars of the law, and to ensure due protection for the Palestinians as required by Israeli and international law.

One may argue that the ICC is tainted by antisemitism, or that it lacks jurisdiction, but neither of these constitutes a response to the injustices of the occupation. Therefore, even if legally incorrect, the court’s decision should be viewed as a red light. Israel would do well to open its eyes, to see the situation for what it is, and to hasten to do its utmost to alter the vicious reality that prevails in the territories under its control, not out of fear that the ICC will exercise its investigative and jurisdictional authority, or for fear of sanctions that it could impose, but out of a clear Israeli interest: to prevent evil, and for moral and humane reasons.

Prominent figures in Israel define Palestinian opposition to the wrongs of the occupation via diplomatic or legal means as terror that must be thwarted. But they ought to bear in mind that blocking the path of nonviolent protest and diplomatic or legal means could potentially lead to violent terror if that is the only way open to Palestinians to fight the occupation.

Perhaps one day history will be the judge, and decide to convict, when today’s Israel is called to account for its actions before the Supreme Court of the Jewish people.

The writer was the deputy attorney general and is a member of the of public council of the New Israel Fund, of Yesh Din and Friends of Breaking the Silence.

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