On 5th February 2021 Pre Trial Chamber 1 of the International Criminal Court (ICC) in a majority decision ruled that the ICC is permitted to exercise jurisdiction over events occurring in the West Bank and Gaza Strip thus authorizing the ICC Prosecutor’s investigation into allegations of war crimes in these areas.

The State of Israel is not a signatory to the Statute of Rome which established the ICC. The ICC has absolutely no jurisdiction over sovereign states that have not signed the Rome Statute. Consequently the ICC is acting illegally when authorizing the Prosecutor to investigate Israel for alleged war crimes.

On a key question, whether there is actually a Palestinian State capable of delegating jurisdiction to the Court, the Chamber declined to conduct a genuine legal analysis of the issue and based its determinations on resolutions adopted by the UN General Assembly. Such one sided resolutions decided by an automatic political majority bear little relation to law or to fact especially in relation to Israel. The questions before the Court are questions of law and fact and cannot simply be decided by a political show of hands. The ICC’s decision is a political rather than a legal decision.

Rather than acting like a court of law the ICC functions as a political body that carries out decisions based on the interests of its members. By way of example the prosecutor Fatou Bensouda came to the ICC after her tenure as Minister of Justice of Gambia where she presided over and enforced the country’s laws and practices in favour of torture, arbitrary arrest, legal rape, sex trafficking, and female genital mutilation. Despite a 2018 US State Department report detailing these practices, and despite the fact that Gambia is a signatory to the Rome Statute, prosecutor Bensouda has not seen fit to prosecute the leadership of her homeland, including herself. Nor has she seen fit to prosecute the leaders of Syria who are responsible for the largest loss of human life in recent history; Turkey, which in the last decades murdered thousands of Kurds; China, which is holding millions of Muslims in “re-eduction camps”; Iran, which is behind the war crimes being perpetrated in Yemen; or many more.

There are serious concerns about the way the ICC operates. At a cost of many millions of dollars it has succeeded in securing only five convictions for core crimes and is currently facing a serious crisis of legitimacy. Its reputation has been further eroded by the recent report of an Independent Expert Review body which reported a litany of managerial deficiencies, including a failure to adequately address the feasibility of investigations, a troubling dilution of the preconditions for ICC intervention, and an organizational culture characterized by bullying, harassment, lack of accountability and incoherent jurisprudence.

The report of the independent Review Body made the following comment on the way Judges are appointed to the court:

“…it is disturbing to discover that the practice of trading votes out of political self-interest, unrelated to the calibre of the candidate for election to a leading, international judicial post, is so well-entrenched that some States Parties still to this day find it politically expedient and acceptable to adhere to it.” Para 963 of the Report

The Independent Review Body’s reported noted at para 976 of the Report that although Article 36 of the Rome Statute required selection of the “most highly qualified candidates” at the last election 8 candidates described as “formally qualified”, and 6 described as “particularly well qualified” were elected.

Until the Court has rectified the serious defects identified by the Independent Review Body and can deliver judgments and rulings as an independent court without political interference the decision of Israel and the United States not to accept the Court’s jurisdiction is justified.

There have been two inquiries into Israel’s alleged illegal activity conducted by well qualified and independent jurists. The first is the inquiry headed by Justice Richard Goldstone into potential war crimes and possibly crimes against humanity by both Israel and Hamas during the Gaza War of 2008-09 and the second was the inquiry headed by Sir Geoffrey Palmer of New Zealand relating to the Flotilla Incident on the 31st May 2010.

Justice Goldstein concluded, on the evidence adduced and in the absence of any evidence from Israel, which had not taken any part in the inquiry, that Israel could have committed war crimes by deliberately targeting civilians. Following the report further evidence became available from Israel which resulted in Justice Goldstein concluding that during the conflict Israel did not intentionally target civilians and conceding that his earlier decision finding Israel guilty of war crimes was wrong.

The panel headed by Sir Geoffrey Palmer relating to the Flotilla Incident of the 31st May 2010 concluded that Israel’s blockade of Gaza was legal according to International Law being imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea. The panel also concluded Israel was legally entitled to visit and search vessels attempting to breach the blockade and to capture a vessel found to be in breach of the blockade. Furthermore the panel concluded that enforcement may take place on the high seas and may be conducted by force if a vessel resists. It is concerning that news media both overseas and in New Zealand completely ignore Sir Geoffrey Palmer’s conclusions and continually describe Israel’s blockade of Gaza as being illegal.

The results of these two inquiries support the conclusion that Israel as a state is not guilty of any war crimes. Furthermore Israel has a legal system that deals with allegations of criminal misconduct under the rule of law. Israel’s judicial system is highly regarded among objective jurists and scholars. Its Supreme Court is one of the best in the world. It repeatedly holds individual soldiers accountable for any violations of the law of war or international law in general. Under the Rome Treaty the ICC does not have jurisdiction over acts committed by any nation which has a legal system that deals with allegations of criminal misconduct under the rule of law. Israel clearly has such a system.

Hamas doesn’t even purport to accept the rule of law. It boasts about its desire to kill civilians, including babies, women and the elderly. It targets schools with rockets and terror tunnels. It glorifies terrorists who have killed civilians. Both the Goldstein inquiry and the inquiry of Sir Geoffrey Palmer concluded Hamas to be guilty of war crimes by firing rockets aimed at civilian targets in Israel. Hamas show complete contempt for such rulings by continuing to fire rockets at civilian targets in Israel.

Since September 2000 Palestinian organizations and individual Palestinian attackers have been responsible for killing approximately 1,000 Israeli civilians. In the last few years more than 50 Israeli civilians have been murdered and over 1000 injured in an endless chain of shootings, stabbings and a myriad of other forms of violence which have systematically targeted Israeli civilians of all ages. Under official Palestinian Authority legislation Palestinians incarcerated for nationalistic or religiously motivated crimes against Israelis are automatically awarded a monthly stipend starting at approximately USD400 for the less serious offences and reaching up to approximately USD3,429 for those serving a sentence of over 30 years. Additionally on their release they are entitled to a one sum bonus which can reach USD25,000 and sometimes more. Regular Palestinian criminals such as robbers, thieves and other forms of non-politically motivated crimes interned in Israel are ineligible for support under this program. Consequently these payments cannot be described as welfare but more accurately as “pay for slay”.

Both Hamas and the Palestinian Authority do not see themselves as being obligated by humanitarian International Law. On the other hand the Israel Defense Forces has developed an array of means to strike the balance between its obligation to protect its citizens and its commitments to act within the framework of International Law. These measures include issuing alerts in combat zones, including leafleting, placing calls, and sending warning text messages, as well as the “knock-on-roof” measure involving the dropping of an empty shell on rooftops in order to allow civilians the opportunity to evacuate before an airstrike or artillery strike take place.

The investigation authorized by the ICC will do nothing to advance a peaceful solution to this unfortunate conflict. The only way to advance the prospect of a peaceful solution is for the parties to enter into direct negotiations and for the Palestinians to agree on a two state solution which involves accepting the legitimacy of the State of Israel. The Palestinian leadership should desist from continuing the armed struggle and follow the example of the late Nelson Mandela. He negotiated a peaceful transfer of power without resorting to violence establishing the rainbow nation with equal rights for all notwithstanding their religious or ethnic backgrounds. Instead of prosecuting and punishing the leaders of apartheid he established the Truth and Reconciliation Commission.

  • David Robinson Former Associate Judge of the High Court of New Zealand and Honorary Consul for Israel