Advising the ICC Prosecutor: 5 Reasons Why the ICC Lacks Jurisdiction Over Israeli Nationals

The International Criminal Court (ICC) is once again preparing to pursue a war crimes investigation against Israel. These allegations of war crimes are brought by none other than the terrorist-led Palestinian Authority (PA) Unity Government that celebrates and rewards the murder of American and Israeli civilians. Yet, instead of investigating and prosecuting Palestinian terrorists, the ICC continually looks for ways to attack Israel. We are filing the first of three critical briefs before the ICC in defense of Israel’s interests.

Periodically, we send legal letters and memoranda to the ICC Prosecutor to advise her on the law as it applies to the ICC and Israel (as well as to other non-party States to the Rome Statute, the treaty that established the ICC, like the United States).  The European Centre for Law and Justice (ECLJ), located in Strasbourg, France, is our Non-Governmental Organization (NGO) accredited at the U.N. As such, we frequently submit legal analyses through the ECLJ to the ICC, since U.N.-accredited NGOs are encouraged to do so.

As you recall, the Palestinians seek any and every opportunity to try to haul Israelis before the ICC to answer for alleged “war crimes” and “crimes against humanity.” As we point out in great detail in our most recent submission, the ICC lacks jurisdiction over Israeli nationals for a number of significant reasons:

FIRST, it is well-settled in international law that a State is not bound by the terms of a treaty to which it has not acceded. The State of Israel (like the United States) has rejected membership in the Rome Statute. Hence, under international law, that treaty and its terms have no authority over Israeli nationals. Accordingly, to assert that a court created by a treaty to which Israel is not a party may try Israeli nationals for any offense violates international law.

SECOND, it is well-settled in international law, pursuant to the principle uti possidetis juris, that the State that emerges from colonial or mandatory rule becomes title-holder to, and thus sovereign over, all of the territory of that colony or mandate within the borders as they existed on the date the new State emerges. As such, since Israel was the only State to emerge from the territory of the Mandate for Palestine upon the departure of the British in May 1948, it inherited title to and sovereignty over the entirety of the territory within the borders of the Mandate, to wit, all of the territory between the Jordan Rift Valley and the Mediterranean Sea (which includes the so-called “West Bank,” east Jerusalem, and the Gaza Strip). Accordingly, the ICC has absolutely no authority over any events that occur in such territory because such events deal with the domestic affairs of a sovereign State in its own territory.

THIRD, it is a requirement of the Rome Statute that only States can accede to the treaty. There are well-established criteria in international law to determine whether an entity is a “State.” Although “Palestine” claims to be a “State,” it fails to meet the objective indicia for statehood found in customary international law. Accordingly, it is not a State and is forbidden from acceding to the Rome Statute by the express terms of that treaty. Hence, its complaints of alleged wrongdoing by Israeli nationals may not lawfully be received by the ICC Registrar or be acted upon by the Prosecutor.

FOURTH, the ICC lacks jurisdiction over Israeli nationals because it cannot determine whether any of the crimes alleged by the Palestinians actually occurred in the notional “State of Palestine” because no borders for such a State have been agreed to (hence, until that happens, the ICC cannot ascertain whether such offenses occurred in the notional “State of Palestine” or Israel). Since Palestinian allegations are premised on their having been committed on Palestinian soil, it is first required to identify which soil is Palestinian. That was to be determined via good-faith, bilateral negotiations between Israelis and Palestinians, but such negotiations have not occurred. Hence, until the political aspects of the Israeli-Palestinian conflict are resolved, the ICC has no legitimate basis to assert jurisdiction.

FIFTH, the Rome Statute clearly states that ICC jurisdiction may occur only if the State concerned is either unwilling or unable to investigate and prosecute (if the evidence so warrants) those accused of the crimes enumerated in the Rome Statute. That principle is referred to as “complementarity.” This first brief dealt only with the first four principles above. We will deal with the issue of complementarity in our next brief.

We will not let this unlawful investigation continue without a strong pushback. We have mobilized our offices around the world – including our office in Jerusalem – to monitor this situation and hold the ICC accountable to the rule of law. The ICC was meant to punish the world’s worst crimes against humanity, not become a political tool hijacked by terrorist regimes. We have won at the ICC before and will do so again in defense of Israel’s interests.