International law guarantees each state its right to self-defense, and yet Israel has been repeatedly condemned for doing just that. The ICC has no jurisdiction to investigate Israel
Talia Einhorn, Ordinary Professor (em.), Ariel University/ Visiting Senior Research Fellow, Tel-Aviv University Faculty of Management and Titular Member of the International Academy of Comparative Law.
1. Introduction
In 1998, I co-edited a book, honoring Israel’s 50th Anniversary, entitled – Israel among the Nations. Professor Alan Dershowitz aptly named his contribution – “Israel – The Jew among the Nations”.[1] Dershowitz pointed out that “no civilized nation in the history of the world which has faced comparable threats to its survival – both external and internal – has ever made greater efforts at, and has ever come closer to, achieving the highest norms of the rule of law. Yet no civilized nation in the history of the world – including totalitarian and authoritarian regimes – has ever been as repeatedly, unfairly and hypocritically condemned and criticized by the international community as Israel has been over the years”.
The attitude adopted by the ICC and its Prosecutor towards Israel offers another exemplary case in point.
On February 5, 2021, a three-judge ICC panel, decided by majority, against the well-reasoned, dissenting opinion of the panel’s presiding Judge Peter Kovacs (165 pages), that the Court has jurisdiction over war crimes allegedly committed by Israel in Judea & Samaria, the Gaza Strip, East Jerusalem and the Old City, as of June 13, 2014.[2] Following the panel’s ruling, the ICC Prosecutor, Fatou Bensouda, announced her decision to open an investigation against Israel.
In his speech at Yad Va-Shem last week, commemorating the plight of Jews in the Shoah, Prime Minster Netanyahu criticized, rightly and emphatically, the ICC’s outrageous decision to investigate Israel for potential war crimes against Palestinians.
“The Jewish people were defenseless in the face of the Nazis but are no longer so, and have every right to defend themselves from their enemies,” he said.
In line with PM Netanyahu’s statement, last Friday, April 9, 2021, Israel sent its official response to the Court’s decision, contesting the Court’s jurisdiction, rejecting the claims that Israel has committed war crimes, while stressing that the Jewish state is committed to the rule of law and capable of investigating itself.
This paper addresses the “crimes” allegedly committed by Israel (Part 2), the (lack of) jurisdiction by the ICC (Part 3), and my conclusions (Part 4).
2. The “crimes” allegedly committed by Israel
The ICC was established under the Rome Statute,[3] with the power to exercise jurisdiction over persons who had committed the most serious crimes of international concern to the international community as a whole (Art. 5(1)). In its detailed provisions, the Statute addresses the following crimes: genocide, crimes against humanity, war crimes and crimes of aggression (undefined).
However, on Egypt’s initiative, shortly before finalizing the text of the Rome Statute, Article 8(2)(b)(viii) was inserted into the Statute, defining, among the most serious crimes, “the transfer, directly or indirectly, by the Occupying Power of parts of its civilian population into the territory that it occupies.” This provision was inserted with the sole object and purpose to target Israel,[4] by rendering the Jewish settlements in Judea and Samaria (and, in the past, the Gaza Strip as well) war crimes and anyone who lives in settlements beyond the 1949 ceasefire lines (the “green line”), or who fights to defend them – a war criminal, even if the settlements were not established by the State of Israel, even if the initiative to settle came from the settlers, and even if their establishment involved no violation of the Fourth Geneva Convention (which does not apply to the lands of Judea and Samaria, the Gaza Strip, East Jerusalem and the Old City), or of any accepted rule of international law.
It is hard to imagine that the existence of Jewish life in the Old City of Jerusalem, Hebron, the city of our Patriarchs, or anywhere else in Jerusalem, Judea and Samaria, the Gaza Strip and the Golan Heights, are those most serious crimes against the international community as a whole, that the Rome Statute intended to address.
Indeed, the crimes for which people have been prosecuted before the International Criminal Court so far have included ethnic massacres, murder, torture, rape, mutilation, and forcibly abducting and conscripting child soldiers amounting to crimes of genocide and crimes against humanity.
By contrast, as pointed out by Col. Richard Kemp, the former commander of British forces in Afghanistan in his expert testimony at the United Nations Fact Finding Mission on the Gaza Conflict, established by the UN Human Rights Council (also known as the Goldstone Commission)– “Based on my knowledge and experience, I can say this: During Operation Cast Lead, the Israeli Defense Forces did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare.”[5] Unfortunately, Col. Kemp’s testimony was not even mentioned in the Goldstone report.[6]
Moreover, in international law, the territories of Judea and Samaria and the Gaza Strip are not “occupied territories” at all, in the sense of this term in international law. At the San Remo Conference in 1920, the Supreme Council of Principal Allied Powers agreed that the territories of Israel (which included the territories of Judea and Samaria and the Gaza Strip) would be entrusted to Britain as a mandate for the establishment of a national home for the Jewish people.
The Preamble to the Mandate Document states explicitly that it is based on the international recognition thereby given “to the historical connection of the Jewish people with Palestine, and to the grounds for reconstituting their National Home in that country.” The Mandate Document further stipulates that “the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favour of the establishment in Palestine of a national home for the Jewish people.” Britain undertook to “facilitate Jewish immigration . . . and encourage . . . close settlement by Jews on the land” (Article 6) and to “introduce a land system . . . having regard, . . . to the desirability of promoting the close settlement and intensive cultivation of the land” (Art. 11).
The Palestine Mandate does not mention Arab national rights in Palestine. Regarding the non-Jewish population in general, it provides that “nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities” (second paragraph of the Preamble and Article 2 of the Mandate Document). But they were granted no collective, or national, rights. The reason for this is clear, since the object and purpose of the Mandate was to reconstitute the political ties of the Jewish People to their homeland.
The rights of the Jewish People under the Palestine Mandate were ratified by the League of Nations and then, again, in Article 80 of the UN Charter, over the objection of Arab states.
The illegal occupation (from the point of view of international law), during the War of Independence, of the territories of Judea, Samaria, the Old City and East Jerusalem by Jordan, and of the Gaza Strip by Egypt, both of which invaded Israel in an act of aggression, not in self-defense, did not render Jordan and Egypt legitimate sovereign powers in these territories. Therefore, Jordan’s attempt to annex Jerusalem and the West Bank in 1950 did not gain international recognition.
In 1967, following the Six Day War, the territories, which had originally been designated as part of the Jewish the national home according to the Mandate document, reverted to Israeli control.[7] Prominent international jurists opined that Israel was in lawful control of those territories, that no other state could show better title than Israel thereto, and that these territories were not “occupied” in international law, and that Israel was entitled to declare that it has applied its sovereignty thereto. Israel’s official position to date, as also communicated to the International Committee of the Red Cross in 1987, is that these are “disputed territories,” to which Israel has a priority claim of right. Since they were not taken from any other sovereign, the Hague Regulations of 1907/1899 and the Fourth Geneva Convention do not apply to them. However, Israel chose, at its own initiative, to apply the humanitarian provisions contained in the Fourth Geneva Convention to the Arab population living in these territories.
The above state of international law notwithstanding, this invented “crime” was included in the Rome Statute, and legislative history shows that it was deliberately introduced to single out the people of Israel.
3. No Jurisdiction of the International Criminal Court
The jurisdiction of the Court is limited to acts committed on the territory of a member state and to crimes committed by nationals of member states. In addition, a state, that is not a party to the Statute, may, by a declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to crimes committed in its territory, that it has referred to the Court. However, Israel is not a member state and Palestine, as noted in the dissenting opinion by Presiding Judge Kovacs, is not a state at all.
Although Israel signed the treaty and was one of the countries that initially supported the establishment of such a tribunal, in the end, due to the addition of the unique “crime” invented for Israel, it announced that it would not ratify the treaty. Had it ratified the Statute, Jews would no longer have been able to live in the Old City of Jerusalem, in Hebron – the city of the Patriarchs, where Jews lived from ancient times until the massacre and forced expulsion of the Hebron Jewish Community in 1929 – or anywhere else in Judea, Samaria, Gaza Strip and Golan Heights. It is noteworthy that, out of the five permanent members of the Security Council, three had not ratified the Statute, primarily the United States, but also Russia and China, evidencing the lack of trust that these countries have in the objectivity of this organization and in its ability to hold a hearing in accordance with proper and impartial procedure.
In January 2009, during Israel’s Operation Cast Lead in Gaza (27/12/2008-18/1/2009, following a barrage of rockets launched by the Hamas in Gaza at Israeli cities), the Palestinian Authority submitted a declaration to the ICC Registrar “[recognizing] the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002” (that is, the date on which the Rome Statute entered into force).
In international law, the conditions for statehood are determined objectively, the objective conditions being those determined in the Montevideo Convention on the Rights and Duties of States, 1933: (1) a permanent population; (2) a defined territory; (3) an effective government; and (4) the capacity to enter into international relations with other states.
As for the Palestinian Authority, those conditions have not yet been fulfilled. According to the Oslo Agreement between Israel and the Palestine Liberation Organization (PLO), the territory of the Arab state must be determined in an agreement with Israel; the territories in question are currently under dual government – that of the PLO in the West Bank and of the terror organization Hamas in the Gaza Strip. Finally, with respect to the population, the status of many residents is that of eternal refugees who do not consider themselves permanent residents of those territories. They claim a right of return for themselves to Israeli territory within the Green Line. To date the Palestinian Authority has refused to recognize Israel’s right to exist as the state of the Jewish nation. Consequently, according to international law precepts, there is no state called Palestine.
The question of statehood in international law is distinct from membership of the United Nations. Thus, for instance, Switzerland, a sovereign state, was for many years not a member of the UN. On the other hand, there were entities, such as India, that became members before they attained independence.
The conditions for membership of the United Nations of the United Nations are stipulated in Articles 3-6 of the United Nations Charter. Pursuant to Article 4(1): “Membership in the United Nations is open to all other peace-loving states45 which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.”
A precondition for admission to the United Nations is a Security Council recommendation in support of membership. Under Article 27(3) of the UN Charter, Security Council resolutions on all substantive matters require the affirmative vote of nine member states, including the agreement of all permanent members of the Security Council (since the permanent members have the power to veto a Council decision). Once a Security Council is adopted, the question of membership passes to the General Assembly. The decision on admitting a new member must be made by a two thirds majority of members present and voting (Art. 18(2), UN Charter).
On September 23, 2011, Palestinian Authority leader Mahmoud Abbas applied to the Secretary General of the United Nations for Palestine to be recognized by the UN as a member state, whose territory would include “all Palestinian territories occupied by Israel in 1967.”
The application was made in breach of an international law commitment undertaken by the PLO, since it contravened the Interim Agreement signed with Israel in 1995. Article XXXI(7) of that Agreement provided that “neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.”
On November 11, 2011, the Security Council approved a report by a special committee of the Council, stating that it was unable to make a unanimous recommendation to the Security Council concerning the Palestinian Authority’s application for admission as a UN member.[8] The United States announced that it would veto any decision to support the application. Two other permanent members, France and Great Britain, said that they would abstain in the event of a vote. Alongside the states that supported the application, there was also a group of states that considered that the PA did not meet the conditions required by the UN Charter, i.e., that it was not “peace-loving,” that it would not accept the obligations of member states under the UN Charter, and that it would not be capable of, or willing to, fulfill those obligations.
That Palestine is not “peace loving” may be gathered from the Palestine National Charter of 1968,[9] that determines that “armed struggle is the only way to liberate Palestine”, and that “this is the overall strategy, not merely a tactical phase” . . . “the partition of Palestine and the establishment of the State of Israel are entirely illegal” (Art. 19), and that “the Balfour Declaration, the Palestine Mandate, and everything that has been based on them, are deemed null and void” (Art. 20). Despite promises to amend the Charter, to date no new Charter has been drafted, nor has a legal committee been set up to reformulate the Charter. To the contrary, statement by Arab leacers indicate that the PLO Charter is in force.[10]
In order for a Security Council vote to be held, one out of its 15 member states must request that a vote be taken. However, after the report had been approved by the Council, the PA decided not to push for a Security Council vote, but to go directly to the General Assembly which, although not competent to grant membership in the organization, can upgrade the PA’s status to that of a non-member observer state.
On November29, 2012, exactly on the 65th Anniversary of the General Assembly’s Partition Resolution of 29 November 1947, the General Assembly, by a large majority (138 members in favor, 9 against and 41 abstentions), adopted a resolution to “accord to Palestine non-member observer State status in the United Nations.” Eve[11]n the nations that supported the upgrade included some, such as New Zealand, that pointed out that whether Palestine is a state is a separate question, and that it can only be a state de facto with Israel’s agreement.[12]
To sum up, according to the provisions of the UN Charter, “Palestine” could not even be accepted as a member state of the UN.
4. Conclusions
A. Israel was correct in notifying the ICC that it had no jurisdiction over alleged crimes committed by Israel in the territories of East Jerusalem, the Old City, Judea and Samaria and the Gaza Strip. The jurisdiction of the International Criminal Court is limited to acts occurring on the territory of a Member State. In addition, a State other than a Contracting Party may declare its acceptance of the jurisdiction of the International Criminal Court over crimes committed by its citizens or on its territory. Neither condition applies in the case of Israel. Israel is not a member state of the Rome Statute and, according to international law precepts, there is no state called “Palestine”.
B. Under no circumstances should Israel cooperate with the ICC investigation or, later, with a trial should the decision be taken to prosecute Israel citizens. If Israel cooperates with the investigation or with any Court proceedings, it will not be able to claim in retrospect, when the bad political result arrives, that the Court’s decisions are unacceptable. The procedure itself, the likes of which have only been taken against Israel for anti-Semitic and politically motivated reasons, must be denounced. At the same time, Israel was correct to underline, in its official response to the ICC, that it is capable of carrying out the investigations itself. As is well-known, Israel investigates its military’s activities regularly, as a matter of course.
C. There is a direct connection that leads from the Oslo Accords to the decision of the ICC in The Hague. Were it not for the Oslo Accords, by virtue of which the Palestinian Authority was established, Israeli leaders, commanders of the Israel Defense Forces and settlement leaders would not now face the danger of being unjustly prosecuted before the ICC. Israel must require the Palestinian Authority to withdraw the complaint it had submitted to the ICC. Should it refuse, Israel will have to consider its next moves, since the very existence of the Palestinian Authority rests on Israel’s constant support, and it is highly doubtful that Israel has any further interest in the continued existence of an entity that endangers its political leadership, IDF commanders and settlement leaders, while denying Israel its right to self-defense, the most basic right of which no state may be deprived.
D. At the same time, a warning is in order – should a sovereign Arab state be established west of the Jordan river, it will be entitled to ratify the Rome Statute, thereby endangering any Jewish leader, soldier, or settler for “crimes” allegedly committed on its land.[13] The decisions of the UN Conferences against Racism in Durban, South Africa (Summer 2001 and Summer 2011), and the many condemnations of Israel by the UN General Assembly, the Security Council, UNESCO, the UN Human Rights Council (which replaced in 2006 The United Nations Commission on Human Rights), the Goldstone Report (The United Nations Fact-Finding Mission on the Gaza Conflict), and the Advisory Opinion of the International Court of Justice in The Hague on the Separation Fence[14] – all provide a clear insight of what is to be expected from the International Criminal Court.
Although every country has a right to self-defense in international law, a right that was also recognized in the UN Charter, Israel has repeatedly been condemned for actions it had undertaken in self-defense. Political and other considerations have led the international community, the international media and human rights activists to apply double standards in Israel’s case. [18] As pointed out pertinently by Alan Dershowitz, “By treating Israel and its enemies comparably and ‘even-handedly,’ the world fails to recognize the important distinction between a flawed democracy and imperfect dictatorships.” [19]
The very fear of further lawsuits before the International Criminal Court, in light of the recent decision of the International Criminal Court’s Prosecutor to investigate Israel on charges of “war crimes”, could have a chilling effect on Israeli citizens and leaders, preventing IDF commanders and soldiers from defending Israel as they should
To conclude, as noted by PM Netanyahu in his speech at Yad Va-Shem, “the ICC was formed in the image of the courts of the Nuremberg trials that brought Nazis to justice. But from Nuremberg to The Hague things were turned upside down. A body formed to defend human rights has become a body that in actuality defends those who trample on human rights.”
[1] Alan Dershowitz, “Israel – the Jew among the Nations”, in: Alfred Kellermann, Kurt Siehr and Talia Einhorn (eds.), Israel among the Nations (Kluwer Law International, 1998), pp. 129-136.
[2] June 13, 2014, is the day after three Israeli teenagers had been kidnapped and murdered by Hamas terrorists. <https://www.memri.org/tv/hamas-leadership-acknowledges-responsibility-kidnapping-three-israeli-teens>
[3] <https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf>
[4] See the statement made by Israel’s Foreign Ministry Legal Advisor Alan Baker, upon Israel’s signing of the Rome Statute, expressing Israel’s concern about the insertion of the political provision into the listing of war crimes in the Statute, available at <https://mfa.gov.il/MFA/MFA-Archive/2001/Pages/International%20Criminal%20Court%20-%20Press%20Briefing%20by%20I.aspx>
[5] Col. Kemp’s testimony can be viewed at <https://www.youtube.com/watch?v=JURMFtGRpjc>
[6] David Eshel, “The UN Goldstone Commission: A Lesson in Farcical Hypocrisy”, Defense Update (Sept. 28, 2009), available at <https://defense-update.com/20090928_goldstone_kemp.html>
[7] Cf., in detail, with further references, Talia Einhorn, The Status of Judea & Samaria (the West Bank) and the Settlements in International Law (Jerusalem Center for Public Affairs, 2014), available full-text at
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2480505>
[8] <https://www.securitycouncilreport.org/un-documents/document/ares6719.php>
[9] < https://avalon.law.yale.edu/20th_century/plocov.asp>
[10] Dore Gold, The Fight for Jerusalem: Radical Islam, The West, and The Future of the Holy City (Regnery Publishing 2009), p. 196, with further references.
[11] < https://unispal.un.org/DPA/DPR/unispal.nsf/0/C05528251EA6B4BD85257AE5005271B0>
[12] In this context see John Cerone, “Legal Implications of the UN General Assembly Vote to Accord Palestine the Status of Observer State”, ASIL [American Society of International Law] Insights, vol. 16, issue 37, note 26, referring to the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties.
[13] See Talia Einhorn, “Israel and the International Criminal Court”, Nativ (2000 / 5-4) 36 (in Hebrew).
[14] Einhorn, supra n. 5, part 4.3.
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