Palestine Situation before the ICC: reflections and views of Israel

To me, the subject of Israel and Palestine, the relations between the two entities and their peoples, as well as the role of third actors (international or not), including the International Criminal Court (ICC), has been of concern for many years. The so-called Palestine Situation before the ICC seems to put into perspective the meetings and dialogues I had more than twenty years ago. Professionally, I have devoted my energy for the past fifteen years to international criminal justice, both in teaching and research and in practice, where I have been able to work alongside the Prosecutor General of Israel, the defence and more recently, in the representation of victims of international crimes. This “Situation” also touches me on a personal level. I am Israeli by heritage, by birth, by life and by choice, having returned more than once, after more than a decade spent in France and the Netherlands. I am not only Israeli. The identity of each of us is composed of several elements. Some of us have more apparent components than others, yet none of us is defined by a single name, an experience, a past or a single aspect of the present.

This is why the philosophical theme (from Thomas Aquinas to Rene Descartes) of the contours that distinguish object and subject and the possibility of observing the question objectively, is more relevant to me than ever. I wonder if an external point of view is always more objective? More impartial? The external actor certainly has the advantage of a distant, non-emotional, supposedly rational viewpoint, whereas an inside point of view has the advantage of knowing the actors over time, knowing the nuances and subtleties. This dilemma made me opt for public silence for a long time - preferring to do my job and create a forum for dialogue, a safe and secure place where opinions and law can develop peacefully in the form, among others, of the International Criminal and Humanitarian Law Clinic.

Yet, especially on the subject of Israeli-Palestinian relations, I have often been struck by the limits of objectivity of the external viewpoint. This limitation is not only due to a lack of knowledge - on the contrary, this arena draws serious researchers and practitioners with an impressive knowledge of facts and events, often even better than that of much of the local population. The limits to which I am referring are rather related to the inability I have seen of external actors to be or to remain truly external third parties to this situation that is the Israeli-Palestinian conflict. More than in any other conflict, the empathy of third party actors tends to become symbiotic. To outline the main lines of my thinking, I would say that empathy is about seeing the other person, understanding them in their pain and reaching out to them in order to “pull them from the mud”. Symbiosis, on the other hand, consists of entering the mud with the other person and losing all capacity to help and be useful. In these circumstances, one may ask oneself what advantages the external observer maintains over the (passive or active) internal actor? Over time, seeing so many external (and internal) actors expressing themselves, I decided to express myself - not without hesitation.

ICC Jurisdiction: A Legal and Political Issue

What is the current status of the “Palestine Situation”? The next step is expected on 30 April, when the Office of the Prosecutor will provide its consolidated response to 43 amicus curiae, including from 8 States and about 10 victims' representatives - 9 Palestinian and 1 Israeli. These communications followed Prosecutor Fatou Bensouda’s 20 December statement in which she announced her decision to open an investigation in response to requests from the Palestinian Authority, and asked the Pre-Trial Chamber to validate her finding of principle - that jurisdiction exists - and the extent of her territorial jurisdiction over the Gaza Strip, the West Bank and East Jerusalem.

Still, the jurisdiction of the Court would have to exist on the basis of two declarations by the Palestinian Authority, made successively on 1 and 2 January 2015. The first recognized the jurisdiction of the ICC retroactively to 3 June 2014, one day after the taking of hostages and the execution of three Israeli youths at close range by a Palestinian militia. The second declared to the UN Secretary-General Palestine's accession to the Rome Statute.

The central legal issue is that, according to the Rome Statute, only States can recognize the jurisdiction of the ICC over their territory and nationals (except in the case of constitutive recognition by the Security Council, according to Article 13 of the Statute). Let us recall that the 2015 requests were preceded by a first request of  21 January 2009, which was rejected by former prosecutor Luis Moreno Ocampo, after more than three years of legal (and political) debates on the issue of conditions for statehood (for more on the debate and history see here). He stressed the difficulty of deciding on Palestinian statehood and indicated that until the UN had decided on its status as an observer state, he could not make a decision.

Nevertheless, today the ICC must decide on the question of jurisdiction and whether at this stage of the proceedings the Palestinian request meets the requirements of the Rome Statute. It must be stressed that the Court will for the first time decide in a legal manner on this question of jurisdiction. However, the issue could be raised at later stages of the proceedings.

Thus, a legal issue is also a political one and is central to the national aspirations of the Palestinian entity - one of the key objectives of the Oslo Accords negotiated in the 1990s.

Recommended reading

ICC/Palestine: When do states recognise states?

In other words, Palestine is not a State

The fact is that the Prosecutor does not say in her 22 January 2020 application that Palestine is a State, but that "the question of Palestine's Statehood under international law does not appear to have been definitively resolved". The Prosecutor invites the Court not to resolve the question of Statehood under international law but rather to refer to the legal debate conducted at the time of Palestine's accession to the Rome Statute and then to follow the letter of the Statute. However, there was no legal debate at the time of accession, on its status as a State. Upon accession, the Assembly of States Parties accepted it precisely without prejudice to the legal debate. In the alternative, the Prosecutor invites the Court to say "for the strict purposes of the Statute" that Palestine is a State under relevant principles and rules of international law. Is this broad interpretation (or functional approach), which is contrary to the principle of legality which requires a strict interpretation, an elegant way of seeking a middle ground between those who say that Palestine is not a State and those who say that Palestine has been a State since 1988, and even since 1923?

There is neither elegance nor an in-between in the interpretation proposed by the Prosecutor of the ICC. Sometimes things have to be said as they are, especially in a legal, not diplomatic, forum. Palestine is not a State in all senses of the word states in substance the Prosecutor. In other words, Palestine is not a State. That will surely be the reality of tomorrow. However, it is not today's reality.

Yet, especially in such a charged situation, the law is an asset. It offers a common language of rules and mechanisms that everyone must accept. The law offers serenity between parties who, in its absence, are left to diplomacy or force. By respecting its legal character, the ICC takes on its full force - including that of recognizing the validity of alternative mechanisms for resolving the injustices at the centre of the conflict. It cannot compromise its own rules. This is how I see the role of law in the Israeli-Palestinian conflict.

The ICC must not become a “court of exception”. It must remain loyal to its status and its mandate: to deliver justice on the basis of the principles of fair trial and not at any cost.

Predictable and less predictable amicus curiae

We note here that the amicus curiae briefs submitted to the ICC by authors of Palestinian nationality (and their co-authors) support Prosecutor Bensouda's position. The amicus curiae of Israelis, for the most part, oppose this. Third parties, neither Israelis nor Palestinians, who plead for justice, are either for or against the ICC's jurisdiction. Most States argue against the ICC's jurisdiction. But I would like to draw attention to some less predictable actors. I'm thinking of Israeli Professor Eyal Benvenisti,

author of “The International Law of Occupation” and analyst often critical of Israeli government policy. Should he be suspected of bias when he takes a position against that of the ICC Prosecutor’s office? There are also the Americans Stephen Rapp and David Crane, who plead against the ICC's jurisdiction whereas in the Afghanistan situation they pleaded for it; and Robert Badinter, a champion of human rights, to whom France owes the abolition of the death penalty. Should they be suspected of non-objectivity?

In my amicus curiae, I proposed to the Court that instead of focusing on the nature of the Palestinian entity, it should reconsider its own laws and rules and focus on the nature of its jurisdiction. This would be all the more relevant as the Prosecutor seems to have dismissed the (extreme) position of recognizing Palestine as a State, and thus the unfortunate impact of setting a precedent in history where a Criminal Court would establish a State. As the Prosecutor states, an investigation should only be opened on a firm jurisdictional basis. She also rightly states that jurisdiction is a fundamental concept of the ICC. Indeed, issues of jurisdiction are among the three issues for which an appeal is provided by law under the Rome Statute. It is also clear that jurisdiction is followed by strict conditions set out in the Statute.

I appeal to the principle of legality, a fundamental principle of criminal procedure "without which one cannot speak of justice" as stated by Professor Georges Levasseur in 1964. The principle of legality is often presented as being limited to the obligation to define the crime (nullem crimen) and the penalty (nulla peona) by a law (sine lege). However, the principle of legality is made first of all of the principle of procedural legality. The importance of procedural legality lies in the fact that it makes it possible to distinguish justice from arbitrariness.

Thus, in this exceptional situation of Palestine, the ICC must not become a “court of exception”. It must remain loyal to its status and its mandate: to deliver justice on the basis of the principles of fair trial and not at any cost. Otherwise, the ICC risks compromising itself. If the ICC were made solely for the purpose of combating international crimes, the ICC would have been the Court of universal jurisdiction. It is not, since the Statute establishes strict rules for the exercise of its jurisdiction. Yet this Court is unique. It is the result of countless historical efforts. Those efforts must be respected in this situation, as in any other situation. The credibility of the Court protects the interests of victims.

In order not to make the ICC an (additional) political actor, its jurisdiction must not become a punishment or prize. The jurisdiction of the Court is a legal question. Its definition does not leave the organs of the Court the discretion to expand it. The notions of peace, security and other broad notions of “justice” have been taken into account by the authors of the Rome Statute - but only to restrict its jurisdiction, not to expand it (see for example Articles 16 and 53(1)(c) of the Statute).

If one traces the history of the relationship of the State of Israel and the Jewish people to the notion of international justice, the picture looks more like a Greek tragedy.

Israel and the ICC, a natural broken bond

How is this debate perceived in Israel? It should be noted that the current context is one of a constitutional crisis between the executive branch, with a Prime Minister who is the target of several indictments, and a Parliament that until recently was unable to assemble, officially because of Covid-19. It is a country without a government other than a transitional one since the elections of April 2019.  In this context, the effects of the ICC Prosecutor's statement have faded somewhat - at least in the public eye.

This forum cannot claim to represent "Israeli society". We are in the Levant. Opinions are countless, speeches and interactions numerous. It is very difficult to even draw guidelines. However, some observations can be proposed.

If one traces the history of the relationship of the State of Israel and the Jewish people to the notion of international justice, the picture looks more like a Greek tragedy. Absurdity and cynicism are at their height. Judge Eli Nathan, who headed the Israeli delegation to Rome in 1998, said at the conclusion of the negotiations on the ICC Statute:

"It is with a measure of regret, both personally as a victim of the Nazi persecution of the Jewish people, and on behalf of the Israeli Delegation which I proudly head, that I have to explain the negative vote which Israel has been unwillingly obliged to cast today with regard to the Statute of the International Criminal Court. It is no secret that out of the embers of the Holocaust against the Jewish people - the greatest and most heinous crime to have been committed in the history of mankind, came the calls of Jews throughout the world, and leading Israeli lawyers and statesmen, as far back as the early 1950's, for the establishment of an International Criminal Court, as a vital means of ensuring that criminals who commit such heinous and terrible crimes will be duly brought to justice. This was, … inter alia, our idea!"

Finally, Israel refused to sign and ratify the Rome Statute, after the ICC recognized the transfer of civilian population as a war crime. This was perceived by the Israeli government as political and was a proposal by Arab countries participating in the negotiations in Rome.

For the average Israeli citizen there is not much difference between the ICC, the UN, the commissions of inquiry of the UN Human Rights Commission and the opinion of the International Court of Justice on the “separation wall”.

The natural and historical link of the State of Israel with the ICC should have been that of brotherhood. The reality is that the ICC is considered suspect, after at least three decades of disappointment with the UN (political) system, and with an automatically anti-Israeli majority in the UN General Assembly. For the average Israeli citizen there is not much difference between the ICC, the UN, the commissions of inquiry of the UN Human Rights Commission and the opinion of the International Court of Justice on the “separation wall”, the barrier that protects Israelis from daily, arbitrary, deadly and traumatic explosions.

Another element of context is that 30 April, the day of the expected response from the ICC Office of the Prosecutor, will come one day after Israel's Independence Day. This follows the long and emotional weeks of the Jewish Passover, marking the end of slavery in Egypt. A week later it will be Holocaust Memorial Day. And another week later will be the day of remembrance for the victims of Israel's wars.

How the ICC is perceived by the Israeli population will depend on its ability to conduct a dialogue, to establish its credibility as a legal actor, to create a dialogue and agreement on common values - and not to become an ICC that threatens this independence, the legitimacy of the State of Israel and its place among nations.

I pray for a world without fear, without war, without occupation, where everyone can “sit under his fig tree and his vine” and where everyone has their place.

Will Israeli victims come to the ICC?

Who are these Israeli victims? And if the jurisdiction of the ICC is established, will Israeli victims come to the ICC? The answer is in the hands of the victims. I would just say that, historically, the collective narrative in Israel has set aside the identity of the victim and replaced it with that of the survivor. We have survived pogroms, the Holocaust, persecution in Arab and Western countries, the Exodus. For Israelis, publicly representing themselves as victims means crossing an identity barrier, both individual and collective.

I dedicate the final word to the invisible victim. The figures, the statistics of the dead and wounded are much higher on the Palestinian side. I recognize the existence and the rights of the Palestinian victims, whoever they may be. They have the right to truth, justice, reparation and non-repetition. But the invisible victim will not be found in the statistics. The one who, like all of us, knows from experience that “normal” does not exist. That illusion of normality, sitting on a terrace, walking in the street, taking the bus, shopping in the supermarket, being stuck in a traffic jam - pre-Covid 19 normality - has never been. Every celebration can become a bomb attack and everyone can become a target - deliberately, indiscriminately, arbitrarily, unrelated to their thoughts, dreams, aspirations, talents, wrongs and faults, actions, indifference. How do you count these victims? Those who get on a bus and watch for too much sweat from one of the passengers to get off the bus long before their stop? Every act that is defined as a crime against humanity or terrorism disturbs everyone's conscience and violates the freedom to live without  fear.

The ICC will have to decide, that is the fate of the Judges - they do not have the privilege of not deciding. In deciding on the existence, non-existence or existence for the purposes of the Rome Statute (the functional approach) of Palestine as a State, the Court will also decide on its own identity.

I pray for a world without fear, without war, without occupation, where everyone can “sit under his fig tree and his vine” and where everyone has their place under Heaven. But in the meantime, I am content with a world where everyone has the freedom to be who they are, with rules and universal values that are supposed to unite us all, with a common language that international law and the ICC can offer.