One of the arguments made by petitioners against the Reasonableness amendment is that it exposed Israeli officials to the threat of prosecution by international bodies. This is a strange argument, as courts are not typically allowed to invalidate constitutional amendments because of diplomatic consequences. It is even odder in the present context, where Israel has not joined the ICC and categorically rejects its jurisdiction, and the reform has no apparent connection to criminal law, which is the ICC’s sole domain. Because the challenge to the law is made in the absence of any specific case or controversy, as the Supreme Court eliminated such limitations on its powers long ago, therefore the petitioners need not identify any actual impact of the law on criminal process, and can just speculate. Here is the relevant part of the government’s response brief.

Interfering in the enactment of a Basic Law on the grounds of concern about Israel’s international status

It is not the role of the Court nor within its scope of authority to examine policy considerations

“Times have changed, leadership has changed, and the times that were are no more.” (HCJ 2148/94 Amnon Gilbert v. President of the Supreme Court and Chairman of the Committee Examining the Hevron Massacre (1994)).

Justice Cheshin used this colorful expression to criticize a political government decision being brought before the Court without any legal argument. The petition today against the  amendment to Basic Law: The Judiciary, is dedicated in its entirety to the legislation’s  (alleged) state-security failings.

It goes without saying that the Government of Israel does not take state or security considerations lightly – they are part and parcel of its general outlook. Nevertheless, with all due respect to the Petitioner and his military background – he has come to the wrong place. The Government of Israel presides over security and foreign-policy considerations – these are not matters for this esteemed Court.

This esteemed Court has been very particular in multiple cases to demarcate the line between legal-judicial matters and those belonging to security, international relations and policy considerations. For example, it was held thus-

Issues of this kind are within the professional bounds of the military authorities and the ministerial authority overseeing them, it is they who are responsible and who are held  accountable according to applicable law that defines the military chain of command as subordinate to the civil governing authority as well as the relations between them: The military and the civil authority overseeing it answer to the government (Section 2 of Basic Law: The Military) … and the government in this regard answers to the Knesset (Section 4 of Basic Law: The Government). […] Our conclusion stems from the nature and workings of the various branches of government and from the logic that underlies the establishment of separate fields designated to each one of them in a lawful system of governance. The existence of efficient oversight over each of the branches is a fundamental principle of the entire system of government, with the separation of powers being one of its pillars, and it also among other things, ensures balance between the authorities which is an essential component of democratic governance. However, both those who, due to the aforementioned reasons, are aware of the importance of efficient judicial oversight in our system of government, as well as those who argue that this Court should be granted authorities for constitutional-judicial oversight – and I am in the latter school of thought – will not go as far as confusing operational-military considerations with judicial ones. I am therefore of the opinion that the issue of operational inquiries is completely non-justiciable.^[1]

The Petitioners allege that amending Basic Law: The Judiciary shall increase the risk to IDF commanders of international prosecution. They claim the Knesset did not enact the Basic Law with the basis of “sufficient evidence”, failed to conduct a full discussion, and failed to sufficiently address the opinions of the “experts”.

The Government of Israel utterly rejects these allegations on their merits, but will also preemptively assert that even had they any substance – they would be completely irrelevant to the constitutionality of the law.

It is not the role of the Court to oversee matters of policy. Policy considerations are not within the Court’s field of expertise, nor does it have any authority over such issues. This esteemed Court does not even review ordinary legislation of the Knesset for appropriateness or propriety, but only whether it meets the terms and conditions of the limitation clauses in the Basic Laws. The Court cannot examine the policy deliberations considered, or not considered enough, by the Knesset.

A hearing on the validity of a law on the grounds it is liable to (allegedly) place Israel in a less positive international light is unheard of. Likewise, the Court discussing the legality of an action claimed by someone or other to possibly reduce or increase the risk faced by civil servants or security personnel of threats from hostile powers abroad.

If such is the case with respect to ordinary law, then a fortiori with respect to a Basic Law enacted by the constituent authority. This esteemed Court does not have the tools or the authority to examine the wisdom underlying a Basic Law from a foreign-policy and security perspective.

Moreover, examining the constitutionality of a law is not the same as examining administrative discretion. The Court never reviews the nature and merit of the Knesset’s considerations. Were legislative oversight to become administrative oversight, it would undermine the very nature of the separation of powers and would destroy legal certainty. Every law would be under a constant cloud of uncertainty could anyone claim that the members of Knesset failed to consider an important consideration or insufficiently address it.

This holds true with respect to ordinary legislation, a fortiori, to Basic Law.

The International Criminal Court has no jurisdiction over IDF soldiers

The Government of Israel maintains its position that the implications of legislation or of Basic Law legislation for the security forces is not a constitutionally relevant consideration; nonetheless, The Government of Israel will further clarify that the claim itself is fundamentally flawed.

The Petition is based on an assumption regarding future ostensible measures that will be undertaken by the International Criminal Court in the Hague (ICC) following the amendment of the Basic Law: The Judiciary, which will allegedly damage Israel and its security personnel’s image in the eyes of this institute.

The Government of Israel’s consistent position is that the ICC has no jurisdiction over Israeli soldiers, irrespective of the particulars of the Israeli legal system. Its position about the matter has been published.[2] The ICC has jurisdiction only over those countries which have ratified the Rome Statute. Israel has never joined the ICC due to longstanding concerns about the court being systemically biased against it. The only way the ICC could exercise jurisdiction over Israeli citizens is in the event of a war crime being performed on the territory of a member state of the convention, a situation which simply never arises.

Over the years, the Palestinian Authority has turned the ICC into the focal point of its “international” campaign, i.e., taking advantage of international institutions and international law to force the State of Israel to make concessions without the need to relinquish anything on their side or jointly resolving the conflict. The Palestinian Authority acted to join the Rome Statute for this reason and its objective was criminalizing IDF soldiers.

After the Palestinian Authority’s 2009 application to join the Rome Statute was rejected, the Chief Prosecutor proposed an exercise in order to circumvent the legal requirements. In December 2014 and January 2015, the Palestinian Authority accepted jurisdiction of the ICC upon itself the as part of the Rome Statute and filed an application to institute an investigation of alleged Israeli war crimes, including military operations in Gaza and including the very existence of Israeli settlements in Judea and Samaria.

The court commenced an initial investigation in 2015. In April 2020, the Prosecutor concluded that the ICC has jurisdiction over the “situation in Palestine”. In February 2021, the ICC’s Pre-Trial Chamber approved the Prosecutor’s conclusions. The case has not progressed since the Prosecutor opened her investigation in March 2021.

The opening of the investigation and the measures described above occurred many years prior to Amendment No. 3 Basic Law: The Judiciary. The Government of Israel claimed and still claims that the ICC’s decision is political, not legal. The Government of Israel does not recognize the ICC and therefore rejects any attempt to request this esteemed Court to give weight to its potential decisions against Israeli security personnel.

After the ICC determined its jurisdiction over the “situation in Palestine”, the US and seven other leading ICC member states (including Canada, Australia, UK, and Germany) publicly rejected and decried the ICC’s decision. This fact emphasizes the extent to which the ICC’s determination was exceptional and lacking legal basis.

As described by Prof. Eugene Kontorovich and Adv. Avraham Shalev:

In December 2019, then-attorney-general Mandelblit issued a lengthy memorandum rejecting the ICC’s claims of jurisdiction over “the situation in Palestine”. In short, the situation did not meet the fundamental precondition for jurisdiction enshrined in the Rome Statute – a state having criminal jurisdiction over its territory and nationals that has delegated such jurisdiction to the Court. A sovereign Palestinian state does not exist, and alleged recognition by some states or by the General Assembly does not change this fact. Indeed, binding Israeli-Palestinian agreements expressly leaves the territorial boundaries of any future Palestinian state to a final resolution, underscoring “Palestine’s” lack of territory. Furthermore, the Palestinian Authority has no de jure or de facto jurisdiction over Area C of Judea and Samaria, Jerusalem, or Israeli nationals. In Mandelblit’s own analysis, if the ICC’s current investigation is entirely illegitimate, it therefore is not acting in accordance with the law; if it were, it would not be able to indict any Israelis. If the ICC chooses to ignore international law, it will hardly care more about the details of Israel’s domestic law. 

Despite the non-existence of a Palestinian state and its own lack of de facto or de jure jurisdiction over Israeli nationals, in February 2021, the ICC established that it indeed had jurisdiction over “the situation in Palestine.”  In its decision of February 5, 2021, the Pre-Trial Chamber concluded that “Palestine” includes all of eastern Jerusalem, the West Bank and Gaza – in short, upholding the extreme territorial claims by Palestinians maximalists even before a formal criminal case had been launched. It is clear from this that the ICC has already decided to treat Israel as an occupying power. All of these developments – recognizing a Palestinian state, opening an investigation, concluding that settlements may constitute war crimes – occurred under the present judicial structure. It is evident that respect for Israel’s legal system has not stopped it from taking all the steps leading to charges against Israelis. Experience strongly suggests that it intends to take the next step of issuing formal criminal charges – regardless of judicial reform.^[3]

Thus, the argument that limiting the authority of the Supreme Court in Israel to review governmental decisions on the basis of ‘reasonableness’ will increase or decrease vulnerability to the hostility of a particular international institution is pure conjecture.

The structure of a state’s legal system has no impact on the principle of complementarity

Even had the ICC jurisdiction, it prosecutes only where the state “is unwilling or unable” to investigate or prosecute a crime (the principle of complementarity).^[4] The amendment to the Basic Law: The Judiciary does not affect the Israeli criminal legal system, its independence or its ability to institute proceedings for crimes committed by soldiers.

The ICC is an international tribunal whose member states have a range of legal and political systems. The Rome Statute is therefore completely agnostic as to the details of legal systems, such as the nature of the process for selecting judges, the scope of constitutional oversight, the status of the attorneys general or the range of grounds for judicial intervention in administrative law. As is known, there are 123 member states party to the Rome Statute, spread across Afghanistan, Canada, Denmark and Zambia. Not only is the range of grounds for administrative oversight irrelevant to the tribunal, there is also nothing historically in the drafting of the Rome Statute or the ICC’s activities that indicates a requirement for a particular form of governance. As proof, the Treaty of Rome includes theocracies, monarchies, presidential democracies and parliamentary democracies. The principle of complementarity is based on the authorities’ conduct in a particular case. The structure of the administrative legal system in that country is irrelevant, provided it acts independently and honestly.

The Petitioners claim that restricting the usage of the reasonableness standard expands the government’s margin for terminating judicial officials, such as the Attorney General or the Military Prosecutor, and thereby weaken Israel’s ability to counter the arguments that it fails to meet the principle of complementarity. This claim also fails a reality test. The theoretical ability to terminate the Attorney General or the General Prosecutor does not influence the principle of complementarity. The precedent for this is the ICC’s note of the principle of complementarity as grounds for rejecting an investigation into the UK in which country the government is not bound by the advice of the Attorney General, is entitled to private representation, and applies a very limited doctrine of unreasonableness.^[5] In fact, it even cited the pending criminal investigation in Guinea as a case that meets the requirement for complementarity, without discussing the details of the country’s legal system. It should be noted that Guinea’s legal system has been described by the US State Department as “understaffed, corrupt and untrained” and fundamentally “not independent”.^[6] It is extremely unreasonable to claim that Israel’s legal system will be worse off after the reasonableness standard is restricted than Guinea.

The Petitioners in High Court of Justice 5769/23 even tried to buttress this claim with an expert opinion explaining how increasing the government’s scope for terminating law enforcement personnel harms Israel’s ability to claim applicability of complementarity, both before the ICC and before state judiciaries in which Israeli officials are liable to face prosecution.

Examining the common practice in other leading democracies on this issue demonstrates that granting the executive branch of government the power appoint the heads of the law enforcement system, including the authority to dismiss them from their duties, is the norm in common law countries, without any authority granted to the judiciary to oversee the appointment or dismissal processes on grounds of “unreasonableness”, and no claim can be made that this harms the strength or independence of the law enforcement system.

In the US, ‘US Attorneys’ are appointed by the President and serve on his behalf. The President has the authority to dismiss them at any time. The position includes heads of the legal counsel office, the state attorney’s office and the prosecutor.^[7]

In Canada, the following positions are appointed by the cabinet^[8] (Cabinet in Council Appointments):

1. RCMP Commissioner – General Inspector of the Federal Police[9]
2. Judge Advocate General – The most senior legal advisor in the Canadian military[10]
3. The Attorney General is of course a political appointment and he serves concurrently with the Minister of Defense. Moreover, the Attorney General appoints sub-attorneys who serve on his behalf.[11]

• In the UK, the following roles are appointed by cabinet (Order-in Council Appointments):

1. The Commissioner of the Police of the Metropolis – the most senior role in the police, also responsible for counter-terrorism.[12]
2. Attorney General – a political appointment.
3. Solicitor General – deputy to the Attorney General. Unlike the Attorney General, the Solicitor General is a public servant and a jurist.
4. Furthermore, the elected officials (Police and Crime Commissioners) are authorized to dismiss local police chief constables.[13]

• In Australia the Attorney General is a government minister. The Solicitor General is a jurist and serves on behalf of the government.^[14]
• In New Zealand, the following positions are appointed by the cabinet:

1. Commissioner of Police.[15]
2. Attorney General – serves as a government minister.
3. Solicitor General: Deputy Attorney General, is a public servant and jurist.
4. Crown Solicitors: The prosecutors are private attorneys who serve on behalf of the government.[16]

• In all of these countries these officials only serve on behalf of the government. There is no judicial oversight of their dismissal. As described above, there is no judicial oversight based on a standard of reasonableness such has been practiced in Israel since the 80’s. No claim has ever been made that this harms the independence of the legal systems in common law countries. Similarly, both the investigators and prosecutors in the State of Israel operate independently and daily demonstrate their independence and their ability to enforce the law against criminals.

Israel’s international standing, the attitude towards its military actions and its military legal system are influenced by state and diplomacy considerations, interests, and treaties. The Government of Israel does not anticipate being affected by the promotion of amendments or alterations to the system of balancing the government branches in general and particularly not by a specific restriction of the use of the reasonableness standard.

As described above, nowhere in the world is the reasonableness standard used as it has been used in Israel in recent decades. The claim that Amendment No. 3 would adversely impact Israel’s position in the world is therefore absurd.

Israel’s strong legal system will continue to function independently and professionally, and unhesitatingly preserve the rule of law both among the security forces as well as among the general public. Either way, it can be assumed that parties abroad will seek excuses from time to time to try and harm Israel and the IDF – with or without the statutory amendment. Slandering the legal system to our enemies will certainly help them, although in truth, the parties initiating the legal attacks against the IDF require no justification for their hostile actions.

The Government of Israel is therefore pained by the fact that Israelis are raising baseless and irresponsible ideas before this esteemed Court (and on other platforms) – thereby providing our enemies with false propaganda ammunition. Prophecies about lost faith in the Israeli legal system, when made by Israeli officials, unfortunately have a tendency to be self-fulfilled by individuals already involved in besmirching the IDF and the Israeli legal enforcement system.

2] “The State of Israel rejects the ICC ruling regarding its jurisdiction to hear the Palestinian case” Website of the Ministry of Foreign Affairs (5.2.2021) https://www.gov.il/he/departments/news/fm_gabi_ashkenazi_on_the_decision_by_the_icc

[3] For further elaboration see: “Judicial Reforms and the Threat of International Criminal Court Prosecution”, By Prof. Eugene Kontorovich and Adv. Avraham Russell Shalev, Kohelet Policy Forum.

[4] Article 17(1)(a) of the Rome Statute.

[5] See Aviad Bakshi (2016) “Legal Advisers and the Government: Analysis and Recommendations”, Kohelet Policy Forum.

https://www.icc-cpi.int/sites/default/files/itemsDocuments/201209-otp-final-report-iraq-uk-eng.pdf

[6] Guinea – United States Department of State

[7] 28 U.S. Code § 541 (c)

[8] https://appointments.gc.ca/lstOrgs.asp?type-typ=3&lang=eng

[9] Royal Canadian Mounted Police Act, 5(1): 5 (1) The Governor in Council may appoint an officer, to be known as the Commissioner of the Royal Canadian Mounted Police, to hold office during pleasure, who, under the direction of the Minister, has the control and management of the Force and all matters connected with the Force.
https://www.cbc.ca/news/canada/edmonton/alberta-shandro-rcmp-lucki-removal-1.6661722

[10] National Defence Act, Art. 2(1)

[11] https://federal-organizations.canada.ca/profil.php?OrgID=JUS&lang=en

[12] Police Reform and Social Responsibility Act, 2011
“Special commission on the resignation of the Commissioner of Police of the Metropolis”, 25.03.22, Art. 287

[13] Police Reform and Social Responsibility Act, 28(6)

[14]  Law Officers Act, 1964, Art 6(3)

[15]  Policing Act 2008, Article 12(2)

[16] http://www.nzlii.org/nz/other/nzlc/report/R66/R66-4_.html