The Decision of the International Criminal Court in The Hague

February 2021

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What is the International Criminal Court (ICC)?

The International Criminal Court (ICC) is an international legal institution that began operating in 2002. The ICC was established under the terms of the Treaty of Rome, which was ratified by over 120 countries. Unlike the International Court of Justice, which is also based in The Hague and whose authority is restricted to conflicts between states, the ICC is empowered to investigate and prosecute private individuals, rather than states. It was established in order to emphasize the component of personal criminal liability and to punish individuals who committed or ordered the committal of serious crimes – genocide, crimes against humanity, and war crimes.

What are War Crimes?

War crimes are crimes committed in the course of armed national or international conflicts. These crimes include serious violations of the rules of international humanitarian law committed by individuals or against civilian property. Examples of war crimes include deliberate targeting of civilians, denial of the rights of prisoners of war, taking hostages, and sexual violence against women.

What Authority Does the ICC Hold?

The ICC is only empowered to act in countries that are members of the Treaty of Rome. Any country that has signed and ratified the Treaty can ask the ICC to launch an investigation, and can also be the subject of an investigation.

The ICC is only empowered to prosecute individuals if the state itself failed to undertake independent and exhaustive investigations meeting the requirements for criminal investigations (the “principle of complementarity.”) In other words, the goal behind the establishment of the ICC was not to serve as a substitute for national criminal judicial systems, but to motivate countries to instigate investigations in cases involving serious crimes committed in their territory or by their citizens, due to the knowledge that if they failed to do so, the ICC would be empowered to investigate and prosecute those responsible. Past experience shows that investigative actions by a member state (the United Kingdom) prevented prosecution by the ICC.

What Authorities Does the ICC Hold in Israel’s Case?

Israel signed the Treaty of Rome at the end of 2000, but has never ratified it. The reason for this is Israel’s refusal to accept the position that the settlement of an occupying population in occupied territory constitutes a war crime. Accordingly, Israel is not a party to the Treaty and it cannot turn to the ICC.

Regarding the Occupied Territories, the question arises whether the ICC has investigative authority. The Palestinian Authority was accepted as a member of the Treaty of Rome by an overwhelming majority (only Canada opposed the move) in 2015, even though it is not a state. The Palestinians asked the ICC to investigate Israel’s actions in the territories. The Chief Prosecutor of the ICC asked the Court to rule whether it is empowered to investigate events that occur in the Palestinian Authority areas.

What Did the ICC Decide on February 5, 2021?

On February 5, 2021, the ICC determined that it has the authority to discuss events in the West Bank, East Jerusalem, and Gaza Strip. This constituted a green light for the Chief Prosecutor of the ICC to launch an investigation against Israel on three matters: 1) The suspected use of disproportionate force against civilians in the Gaza Strip during Operation Protective Edge; 2) Suspicion that the open-fire regulations concerning demonstrators along the perimeter fence of the Gaza Strip violate international law; 3) Suspicion that the settlement enterprise constitutes a violation of international law. In addition, Hamas is to be investigated on suspicion of firing indiscriminately at civilians.

The ICC has not adopted a position on the question of whether Palestine constitutes a state, but it has determined that for the purposes of joining the Treaty of Rome it is to be considered a state along the 1967 borders.

What Process Can be Expected Now and What Ramifications Does This Have for Israel?

After the ICC has determined that it is empowered to investigate events in the Territories, the Prosecutor should inform Israel and Hamas that an investigation into the above-mentioned issues is to be instigated. Following this notification, Israel and Hamas will have 30 days to inform the ICC whether they are opening independent investigations; if they decline to do so, the ICC will open an investigation. It is reasonable to assume that such an investigation will take years to complete.

It is important to recall that the ICC is empowered to investigate war crimes, which are extremely serious offenses as defined in international law. Accordingly, it can be assumed that the subjects of the investigations will be senior military and government officials on the policy and decision-making level, rather than soldiers at lower ranks.

What is the Situation on Each of the Three Issues?

As noted, when a state itself has undertaken exhaustive and effective investigations, the Prosecutor cannot file indictments against those involved.

1. Use of disproportionate force against civilians in the Gaza Strip during Operation Protective Edge. Israel claims that the main incidents that occurred during the operation have been investigated. An investigative team was established and examined various incidents; with the exception of one instance of looting, all the files were closed. If the ICC is convinced that the examination was detailed and independent, it is reasonable to assume that no indictments will be served.

However, Israel did not examine its overarching policy during Operation Protective Edge, nor those who made the decisions. This is true, for example, concerning “Black Friday” in Rafah and the “Hannibal Procedure” (which stated that if an Israeli soldier was kidnapped, all means of force were acceptable; this procedure was activated on August 1, 2014, including heavy aerial bombardments that struck dozens of innocent people). In this case, the Chief Military Prosecutor suggested that an independent committee of inquiry be established to investigate non-military functions involved in the procedure. The cabinet rejected this suggestion, with the result that the Prosecutor only investigated military personnel, and not those involved in making decisions on the policy level. After the investigation, the Chief Military Prosecutor closed the file.

2. The open-fire regulations against participants in the “Marches of Return” along the border of the Gaza Strip: Here, too, Israel established an investigative mechanism and undertook investigations. With the exception of one incident, all the files were closed. The Israeli Supreme Court rejected a petition against the open-fire regulations submitted by the Association for Civil Rights in Israel and Yesh Din, accepting in full the state’s position that the open-fire regulations are consistent with international law. It is reasonable to assume that the argument that investigations were undertaken, and that the Supreme Court discussed the issue, will constitute a strong defense before the ICC.

3. The settlements in the West Bank: According to international law, the transfer of a civilian population to occupied territory constitutes a war crime and violation of Article 49 of the Geneva Convention. Israel’s settlement enterprise has extended over decades and involves policy makers on the political level. It is reasonable to assume that this issue will form the focus of the ICC’s investigations.

What is ACRI’s Position?

Over the years, the Association for Civil Rights in Israel (ACRI) has repeatedly turned to the relevant functions in the government, the military, the military prosecution, and the Ministry of Justice, and has also petitioned the Supreme Court, in an effort to prevent violations of international humanitarian law. ACRI has demanded that the Israeli authorities undertake detailed and independent investigations into any suspected instances involving the violation of the rules of war. Thus, for example, we contacted the Attorney General and the State Comptroller concerning Israel's offensive policies during Operation Protective Edge, and particularly concerning the "Hannibal Procedure". We also contacted the Chief Military Prosecutor and petitioned the Supreme Court against the open-fire procedures on the border of the Gaza Strip, among other cases.

Over the years, the Association for Civil Rights in Israel has appealed to the authoritative bodies in the government, military, the military prosecutor’s office, the Ministry of Justice, and even petitioned to the High Court, all to prevent violations of international humanitarian law and demand that Israeli authorities conduct in-depth, independent investigations of these and related matters. ACRI’s position was, and still is, that Israel has a duty to establish an independent investigative mechanism with the authority to look into related policies, guidelines and orders given to soldiers in general, and in the West Bank and Gaza in particular. The lack of such a serious procedure emboldens the ICC to investigate these issues itself. There is a special interest in the opening of the investigation due to Israel’s policy of promoting settlements in the West Bank in violation of international law.

In reality, the internal investigations that Israel opens mainly deal with individual cases against low-ranking soldiers, the vast majority of which close without much consequence. This conduct allows for the ongoing and profound violation of basic human rights in the West Bank, Gaza, and East Jerusalem in terms of Israel’s legal and moral obligations. ACRI continues to appeal to Israeli authorities about human rights violations and to promote international human rights law as the obligatory legal and moral guidelines for formulating and implementing policy.