Does the territorial jurisdiction of the International Criminal Court include “land occupied by Israel during the Six Day War in June 1967, namely the West Bank, including Jerusalem the East, and Gaza ”?
That is the question asked by the court’s prosecutor, Fatou Bensouda, on the “pre-trial room” of three judges more than a year ago. If, as she argues, the court has jurisdiction over these lands, it can initiate a formal investigation into whether “members of the Israeli Defense Forces, Israel [civilian] the Palestinian authorities, Hamas and armed groups ”have committed war crimes there. That, she admits, will turn Palestine into a “state” for the purposes of the court’s founding treaty. Palestinians are parties to the Rome Statute of the International Criminal Court; Not Israel.
The ruling judge of the chamber could not be clearer. “Palestinian statehood was not at all (and still is not) an established issue within the United Nations, contrary to what the prosecutor argues,” Judge Péter Kovács said. The Hungarian judge ruled, logically enough, that the court has jurisdiction over the same areas as the Palestinian Authority. It has no jurisdiction over Israeli-controlled areas under Oslo Accords.
The principle of consistency of court means that it will apply only if national authorities are unwilling or unable to do so. Kovács pointed out that Israel could investigate crimes of war committed within the region it controlled. In any case, he agreed, “without the co-operation of the states with a direct interest… the prosecutor will have no real opportunity to prepare a case or ready cases”.
Concluding that there is a powerful review of 163 pages and over 600 footnotes, citing sources dating back to Attila the Hun. But he did not believe the other two members of the court. The majority opinion, delivered on Friday, was that Bensouda could go ahead, at least for now. However, both judges noted that her investigation was into cases that could be “likely to be lengthy and full of resources”.
When a majority decision is weakened by the chief judge in such strong terms – “this reasoning goes against both the law of the Vienna Convention and the law of the court,” Kovács said. But Israel, like the United States, has chosen not to go to court, arguing – with some justification – that the prosecution of individuals is not a substitute for peace talks.
Seven countries – including Austria, Germany and Hungary – argued that Palestine was not a state and could not accept the sovereignty of the court. Australia expressed “grave concern” over Friday’s rule – as did the US. But these states cannot claim at this stage. So the prosecutor can now open a formal investigation.
But Bensouda only has four years left with four months left to run. Her successor should have been elected last year. But none of the four shortlisted candidates from the states that were party parties had enough support in court. Five new names have now been added, including Karim Khan QC, a former Procurator Fiscal who has chambers in London.
Although Israel took no part in the proceedings, Israeli officials ensured that Israel’s arguments will be heard in The Hague. There is now a lively debate over whether Israel should continue informal ties with the prosecutor’s office.
If Israel can persuade the court that it has investigated allegations of unprovoked attacks during the 2014 Gaza conflict, it may be as successful as the UK’s in stopping investigated by the prosecutor as to whether UK troops committed unprepared war crimes against Iraqi detainees between 2003 and 2009. But Bensouda’s allegation that Israel exterminated civilians – a crime against humanity – by allowing them to live in places like East Jerusalem, from which they had been exterminated less than 20 years earlier, has so far been removed from the fact that Israel’s investigation would be useless.
Benjamin Netanyahu said the court had “violated the right of democracies to defend themselves against terrorism”. According to the Israeli Prime Minister, the court had shown that it was a political body and not a legal institution.
Not everyone will agree. But if that view attracts wider international support the International Criminal Court will be finalized – already emerging from an internal investigation last year that revealed widespread examples of bullying, sexual harassment, incompetence and inappropriate legal incentives. His new prosecutor would review this investigation before going any further.