Adv. Sigall Horovitz*
Publication Date: February 10, 2013.
Type: A summary of a lecture given at the Joint IHL Forum - January 7, 2013
Adv Horovitz proposes that Israel join the International Criminal Court (ICC) as a move enabling it to influence ICC jurisdiction in the region.
The ICC, based in The Hague, was established in July 2002 on the basis of a multilateral international treaty to combat some of the worst crimes the international community could imagine (e.g. war crimes, genocide, crimes against humanity and aggression) via investigation, prosecution and punishment of perpetrators. That said, the ICC is not a Court of universal reach. Its jurisdiction is limited to crimes committed on the territory (or by nationals) of a state that is either party to the Rome Statute or had accepted the ICC’s jurisdiction through an ad hoc declaration under Article 12(3) of the Rome Statute, and crimes referred to the ICC through a UN Security Council (UNSC) referral. A further limitation to ICC jurisdiction is the principle of complementarity, which holds that jurisdiction is supplementary (and secondary) to the State’s national legal process. Thus, when the relevant State itself investigates the atrocities in question, this renders the case inadmissible before the ICC.
Israel was a very active state in the negotiations on the Rome Statute. At a certain stage, Israel objected to a certain provision that was proposed, which defined the direct or indirect transfer of a population by an occupying power to occupied territory as a war crime. Israel’s concern was that this articulation would render the settlements a war crime. Despite Israeli objection, the provision entered the Rome Statute - and on this basis, Israel voted against adopting the Statute in 1998. On the last day open to signatures, Israel signed the Rome Statute to avoid blocking its way forward in terms of accepting the Statute in the future. However, Israel did not ratify the Rome Statute and thus did not become a State Party, citing the provision above as a main reason for its objection.
Due to recent developments (particularly the UN General Assembly (UNGA) Resolution on Palestinian non-member Observer Status in the UN), there is reason to believe that the PA may be able to accept the jurisdiction of the ICC and thus grant it jurisdiction over crimes committed on its territory.
On 29 November 2012, the UNGA granted the PA non-member observer state status. Despite objections as to the UNGA’s role in determining statehood, the Resolution at least means that the UN has recognized that the PA has become a State for certain purposes. However, it is not clear what bearing a UNGA Resolution may have on an entity’s status. This is because international law holds that for an entity to become a State, it must satisfy at least four requirements (posited in Article 1 of the 1933 Montevideo Convention). Whether or not the PA objectively satisfies these criteria, it is noteworthy that UN recognition is not included in the indicia for statehood.
Nevertheless, the Resolution may still be influential. Specifically, it may mean that the PA holds the power to grant the ICC jurisdiction. This may be the case because of the way in which the ICC Prosecutor articulated his decision regarding the PA’s 2009 declaration under Article 12(3). When the Prosecutor rejected the declaration, on 4 April 2012, he cited as the basis for his decision the fact that that he was not authorized to determine whether the PA is a state for ICC jurisdictional purposes — and thus could not determine whether the PA’s request satisfies the requirement for jurisdiction that the declaration be submitted by a State. The Prosecutor went on to suggest that the PA’s status in the UN might have implications for ICC purposes.
In doing so, the Prosecutor may have created a new category of statehood: State for the purpose of accepting the jurisdiction of the ICC. In other words, the ICC Prosecutor may have created a “roadmap” for the PA by suggesting that UNGA recognition may resolve the issue of statehood for ICC jurisdiction. Thus, a future Palestinian Article 12(3) declaration may be sufficient for activating ICC jurisdiction, at least in the eyes of the Prosecutor.
Nevertheless, even assuming that the Resolution satisfies the ICC Office of the Prosecutor’s own criteria, the ICC judges may challenge this determination in the Pre-Trial stage.
A further hurdle is how the ICC could get jurisdiction over Israelis. The Oslo Accords and subsequent agreements that set up the PA actually exclude jurisdiction over Israelis; thus, there is a question of how the PA could grant jurisdiction that it never possessed in the first place (as ICC jurisdiction is based on States granting jurisdiction they already have).
Yet another issue would be the question of retroactive jurisdiction. Although 12(3) jurisdiction can technically be retroactive to as far back as July 2002 (as established by the recent Cote d’Ivoire case), several questions would remain: could the PA grant jurisdiction to crimes committed before the UNGA recognized it as a state? How far back would such jurisdiction go? The Court would face serious issues in determining at which point the PA became a State entity.
Should the PA decide to join the Rome Statute (instead of a 12(3) declaration), the ICC would only receive prospective jurisdiction.
Even assuming all these hurdles are overcome — what then? Israel would still be able to activate the principle of complementarity, rendering the case inadmissible by investigating the crimes in question. As Israel enjoys jurisdiction over its nationals regardless of where they commit crimes, Israel could block ICC jurisdiction via complementarity.
Many allegations could be put forward, including alleged conduct such as illegal detention and unlawful attacks, but one of the more difficult issues will be that of the settlements. This was the activity that Israel was most concerned about from the outset (see above). The settlement activity is not considered illegal under Israeli domestic law, and as such Israel will not be able to currently argue that it is investigating the allegations with its own authorities.
Nevertheless, there's an ICC mechanism which would grant Israel an incentive to join the ICC. Under the Rome Statute, Article 124 allows for a declaration resulting in a 7-year opting out clause vis-á-vis war crimes jurisdiction. It is a transitional period clause, granting the submitting State time to transition itself into full ICC jurisdiction. The Article was expected to be reviewed and removed 7 years after the Rome Statute came into force, but States decided to leave it as is. Article 124 was designed to attract States who fear that joining the ICC might subject their nationals who serve abroad to ICC investigations based on a referral of the state where they serve; it was the result of negotiations mainly between France and a group of States and Germany and a group of States (respectively). France wanted to make ICC jurisdiction over war crimes and crimes against humanity conditional on the approval of the state of nationality of the accused, whereas Germany was concerned that States would be able to trump each other’s accountability. The compromise was Article 124.1
To date, the ICC has never had a chance to interpret this article; of the two States that have triggered this Article, Colombia’s time-period has lapsed uneventfully and France eventually withdrew from it. Nevertheless, there is reason to believe that Article 124 could exempt Israelis from jurisdiction over war crimes should the PA successfully grant the ICC jurisdiction, if Israel joins the ICC accordingly. That said, if the UNSC were to refer a case to the ICC, then the jurisdiction would not be limited even if that State had made an Article 124 declaration (as no State can limit Chapter VII Resolutions).
If Israel joins the ICC while submitting an Article 124 declaration, then it can prevent investigations into allegations of war crimes (including the settlement activity) for 7 years (judging by the dominant, if untested, interpretation). In any event, Israel will also be able to trigger the principle of complementarity. After 7 years, the ICC will probably not be able to go back and investigate war crimes committed in the previous 7 years; but in the 8th year, the ICC would finally have jurisdiction over war crimes. Joining the ICC might thus give Israel an incentive — a 7-year window — to enter into serious negotiation over the status of settlements.
If no settlement is reached after the 7-year window, Israel may nevertheless be able to argue that it is still settling the issue through serious negotiations, and to that end request the UNSC to freeze the ICC investigations under Article 16 of the Rome Statute (which grants the UNSC permission to freeze an ICC investigation if it may impede an ongoing peace process — i.e. for the sake of international peace and security). If the UNSC has reason to view the negotiations as part of a peace process, then Article 16 could very well be triggered.
Another option open to Israel is to declare that settlements are illegal and initiate an investigation — thus blocking ICC jurisdiction via complementarity. Of course, it is hard to imagine Israel criminalizing settlement activity (the conduct in question being construction of settlements as living there would likely not amount to a crime), but Israel could still render it unlawful without criminalizing it.
For example, if the settlement activity were recognized through an alternative, non-criminal transitional justice mechanism as wrongful, its harmful consequences recognized and reparations made,2 then Israel could use this combination of recognition and reparations to activate complementarity. This is because Article 17 of the Rome Statute (which governs complementarity) does not actually require the State to implement a criminal investigation. It only requires some form of investigation, which may be broad enough to allow for some alternate investigation mechanism.
If Israel joins the ICC according to this proposal after Palestine joins, then Article 124 may be construed in a limited manner, against the interest of Israel, as the Court may consider that Israel made the Article 124 declaration in bad faith. It would thus be advisable for Israel to join the ICC (and submit an Article 124 declaration) before the PA joins.
*Sigall Horovitz is an ALMA member and a PhD candidate, and the manager of the Transitional Justice Project at the Hebrew University of Jerusalem. This lecture is based on an op-ed that was published on the website of the Israeli Democracy Institute (in Hebrew).
The author is thankful to Mr. Adam Broza for his help in summarizing the lecture.
2. An entire pool of measures recognized by international law as reparations are available to Israel, including monetary, rehabilitation and official apologies.
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