It is ironic but the decision of the International Criminal Court in The Hague to allow the investigation of war crimes allegedly committed by Israel might actually save Israel from itself. Israel is angry and fearful that its actions in the territories it conquered in June 1967 – the West Bank, east Jerusalem and Gaza, could lead to the arrest and prosecution of Israeli army officers and political leaders. This very well may happen. But Israel has a very sophisticated legal system and the ICC in The Hague knows that if the country in question conducts a full legal review and investigation of alleged war crimes and even prosecutes its own soldiers and if need be, political leaders, then the court does not intervene.
Israel also wields significant political power and ability to dissuade countries from supporting the actions of the International Criminal Court. It could take years before any actual trial would take place against Israeli officers or politicians. Nonetheless, the court could issue indictments and arrest orders that any one of the 123 countries that are members of the court would have to carry out.
That could significantly limit holiday possibilities for a lot of Israelis who were senior officers in those territories at any time during the past 53 years or the political leaders who were responsible for issuing orders which could be perceived under international law as war crimes.
Israel, by the way, was a signatory to the Rome Statutes, which provide the legal status for the International Criminal Court. Israel did not ratify the Statutes, which means it is not a member of the court. Based on the precedence of the Nuremberg trials against Nazi officers, leaders, and their collaborators, Israel was in fact one of the world’s leading protagonists for the creation of the International Criminal Court. The Cold War delayed the establishment of the court due to East-West tensions and fears that the court could be used against the US or the USSR or any of their proxies in the many regional wars that took place under the guise of Cold War battles.
After the fall of the USSR, the court was finally established. Its track record is mainly going after the small, weak and poor countries of Africa. The court has no authority or jurisdiction in the countries which systematically and continually engage in the worst form of war crimes and crimes against humanity such as North Korea, Syria, Iran, Venezuela, Russia, China, just to name a few.
So, if Israel is not a member of the court and it did not ratify the Rome Statutes, why does the court have jurisdiction over Israel? It does not have jurisdiction over Israel. It cannot investigate or prosecute Israel or Israelis for any potential war crime within the legal boundaries of the State of Israel. That is exactly the point – according to international law, and even according to Israeli law, Israel has no sovereignty over the areas of the West Bank and Gaza. Israel did impose its sovereignty over an expanded area that it calls east Jerusalem, but that sovereignty has never been formally recognized in international law.
THE INTERNATIONAL Criminal Court recognized that the legal sovereign in the West Bank, east Jerusalem and Gaza is the state of Palestine. On November 29, 2012, in a 138–9 vote (with 41 abstaining) The General Assembly of the United Nations passed a resolution (Number 67/19) upgrading Palestine to “non-member observer state” status in the United Nations. The change in status was de facto recognition of the sovereign state of Palestine.
This is one part of the irony of this decision, in recognizing the existence of the state of Palestine, something that Palestinians have been pushing for when President Mahmoud Abbas signed the request to join the court in 2014, the International Criminal Court may just have saved the two-states solution from its almost extinction. Israel has done everything possible over the past years to remove the option of a two-states solution from the agenda. The majority of Palestinians, particularly the youth and it seems also a majority of Israelis, are no longer interested in this solution. All of a sudden, the two-states solution now reappears with the certification of the existence of the State of Palestine.
I HAVE full confidence that Israel will be able to prevent its officers and politicians from ever being put on trial for actual war crimes which they may have committed. Israel’s legal mind and importance that has been placed in providing legal cover for military actions, as well as the “investigations” conducted by the IDF following military actions will probably prevent such cases from being brought to the ICC.
There is another issue which seems much more likely to end up in the court – that is the illegality of Israeli settlements in the Palestinian territories. Here the issue is much more complex for Israel. While Israel’s High Court may have ruled on the “legality” of Israeli settlements, it has only done so on the basis of Israeli law. The High Court of Israel has always taken the position that it does not adjudicate on the basis of international law. While this is the position of the Israeli High Court, it has often looked to international law to determine the boundaries of legality of actions of the Israeli government. The Israeli court, for example, recognizes that the legal sovereign in Judea and Samaria is the Commander of IDF forces in the area. This is directly taken from the Fourth Geneva Conventions on law in occupied territories. Israel may name these territories as “disputed,” but according to international law, they are occupied.
The High Court of Israel knows this as well and it is very difficult to make the argument that the transference of civilians (Israelis) from the occupier’s territory to the territory it occupied in what is known as a “belligerent occupation” is legal. There is almost no argument among the overwhelming majority of international law experts that all of Israel’s settlements in the occupied territories are illegal.
The ultimate irony of this situation is that the only body in the world that can “legalize” Israeli settlements in the occupied territories are those territories. Only though agreement between Israel and the Palestinians, either through territorial swaps or other means of agreement between them can some or all of the settlements become legal. This is one additional aspect of how the International Criminal Court may have saved the two-states solution and in doing so, saved the State of Israel from itself.
