Will do Mr. Prime Minister – An imagined dialogue between the Prime Minister and the Head of the Ministry of Foreign Affairs on the Palestinian Authority’s ICC referral

On 22 May 2018, the Palestinian Authority (PA) filed a referral to the International Criminal Court’s (ICC) Office of the Prosecutor (OTP), requesting it “to investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing and future crimes within the court’s jurisdiction, committed in all parts of the territory of the State of Palestine.”

ICC Prosecutor, Mrs Fatou Bensouda and her team meet the Minister of Foreign Affairs and Expatriates of Palestine, H.E. Dr Riad Malki and delegation at the Court’s Headquarters

After learning of the referral and after seeing what was being reported by the major news outlets, Prime Minister of Israel Benjamin Netanyahu (PM) may have contacted Legal (referred to as “L.”) from the legal office of the Ministry of Foreign Affairs, asking to be briefed on the legal ramifications of the referral. Their meeting might have gone something like this:

L:         Good morning, Mr. Prime Minister.

PM:      Who said it’s a good morning? Have you not been watching the news?! We’re being demonized as usual. What are we supposed to do when Hamas is firing rockets at Israel? What are we supposed to do when they whip-up and agitate civilians to storm the Gaza border, while Hamas hide among them, so they can get close enough to kill our soldiers. Why isn’t the international media reporting on how these “protesters” are wittingly or unwittingly assisting these terrorists – acting as human shields? We’re being provoked. If we do nothing, we’ll find ourselves in urban combat not just in Gaza, the West Bank, and other Palestinian held territories, but here in our own streets. If we react, it is inevitable that unarmed protesters will get hurt or killed. And now there is news of this nurse being killed by our forces. Everyone is weeping for her, while our claims that our soldiers were acting within the rules of engagement are ignored.

L:         How can I help?

PM:      What’s this nonsense about the ICC Prosecutor, Fatou Bensouda, opening up an investigation? What is Mahmoud Abbas up to? How serious is it this time? How can the ICC have jurisdiction over Israel, when we are not a State Party to the Rome Statute?

L:         Mr. Prime Minister, we have been down this road before. If you recall, not too long ago there was talk of the ICC Prosecutor investigating alleged crimes against humanity in Gaza. There was an effort to tie in the situation in Gaza with the Mavi Marmara incident. It went nowhere. In fact, after a preliminary examination, the Prosecutor decided against initiating an investigation because the “gravity” requirement was not met, but the Pre-Trial Chamber disagreed with her assessment and ordered to reconsider her decision.

PM:      Get to the point! And don’t assume I know all this technical jargon you are talking about. Better yet, assume I know nothing and we are talking about the ICC for the first time – and walk me through it, step by step.

L:         I can dig up one of our earlier memos or, if you would like something comprehensive, I can prepare an updated memo within a day or so.

PM:      That would be good. But right now, I need you to give me the big picture. This is more than just a legal issue. And if you haven’t noticed, we seem to have been caught flatfooted on this one.

L:         Well, it was only a matter of time until the PA was going to succeed in getting the ICC to launch an investigation – and maybe even hand-down some charges. Behind the PA you have all sorts of NGOs, human rights monitors and activists, etc. gathering evidence, writing reports, issuing press releases, pressuring the UN, and so on. I’m afraid, Mr. Prime Minister, Abbas has successfully internationalized the situation in Gaza. The ICC Prosecutor will come under a lot of pressure to act – swiftly and decisively.

PM:      Why? Explain.

L:         Well, she cannot ignore the PA referral – not while the world is witnessing our soldiers shooting people that look like unarmed or seemingly unarmed civilians on TV screens worldwide. And it doesn’t help when some of our soldiers are callously bragging about sniping at civilians as if they are shooting fish in a barrel, and there is no serious reaction that is openly seen or heard from the commanding officers, or the Defense Minister, or, with all due respect, the Prime Minister. It is only natural that in the court of public opinion, Israel is perceived as the aggressor, and our soldiers are perceived to be targeting innocent civilians.

PM:      I didn’t call you here to give me a lecture on public relations! I just want to know what the ICC process is and what we can expect from them in the short-term.

L:         If you are thinking tactically, I’m afraid that our options are not so great – not unless we decide to play ball.

PM:      I’m not following you.

L:         What I’m saying is that we need to think long-term – strategically. This will require looking at this referral within the context of the wider Israeli-Palestinian conflict and attendant issues. It would be a mistake to look at the ICC strictly as a judicial institution – or the ICC Prosecutor as just someone who will simply investigate and call it as she sees it. She has considerable discretion. She is politically savvy and not above politics.

PM:      So, what are you telling me?

L:         In a nutshell, we need to be engaged in every step of the process. Otherwise, we risk having the PA control the agenda and the narrative.

PM:      Let’s not get ahead of ourselves. Walk me through the ICC labyrinth – step by step.

L:         There is a two-step process that leads to an individual being charged at the ICC. The first step is a preliminary examination, which may be initiated by a referral from a State Party to the Rome Statute (such as the PA’s referral in our case), or by the UN Security Council. (such as the situation in Libya). An investigation may even be initiated by the OTP on its own initiative based on the information received from third parties, like communications from NGOs and individual human rights activists (such as the communication concerning President Rodrigo Duterte of the Philippines). The OTP is obliged to examine all the information it receives and determine: first, whether a national court is already dealing with the situation and whether the national proceedings are genuine and compliant with international norms (the so-called “complementarity” requirement), and second, whether the evidence gathered by the OTP and presented to the Court shows that there were crimes committed that are sufficiently “grave” to be prosecuted at the ICC (the “gravity” requirement). The OTP must also consider whether opening a full-scale investigation would serve the interests of justice and of the victims. Put differently, regardless of jurisdiction and admissibility, the OTP will assess if there is a compelling reason not to take on a situation or proceed with a full investigation in the interests of justice. For example, if such an investigation would only escalate the hostilities or derail ongoing peace negotiations, the Prosecutor may decline to proceed after a preliminary examination in the interests of justice. There is no deadline for bringing a preliminary examination to a close. The OTP continues to collect information on crimes and monitors relevant national proceedings until it has sufficient information to make a determination. If all the requirements are met, the OTP may proceed to an actual investigation – gathering evidence, identifying the suspect or suspects, drafting the charging documents (indictments), etc. – and request the Pre-Trial Chamber (PTC) to confirm the charges against suspects implicated in crimes within the ICC’s jurisdiction, issue arrest warrants, and summons to appear. The PTC may or may not confirm the charges. In the case it does not confirm the charges against a suspect, the OTP may still further investigate, present new evidence, and seek the PTC to confirm the charges once again. If the PTC grants the OTP’s requests, it may confirm the charges and send the case forward to trial if the new evidence establishes that there are substantial grounds to believe that the suspect or suspects committed the crimes in the charging documents.

PM:      Thanks. This is very useful. Now, let’s go back and discuss our immediate options.

L:         At this stage, the OTP will be gathering relevant information and evidence. It will probably start by looking at what has been provided to them by the PA. It will also look at reports prepared by the likes of Human Rights Watch, Amnesty International, NGOs working in Gaza and other Palestinian held territories, and of course, UN reports. This may be enough for the Prosecutor to decide on her next step – even if little or no reliable evidence was gathered by OTP investigators.

PM:      What kind of an investigation is this? How can Bensouda seriously claim to know what has been going on by reading second and third-hand reports, especially reports by organizations that are either anti-Israel or prone to consider only what is fed to them by the PA and their proxies?

L:         It has been done before. There is nothing novel or prejudicial about this approach. Libya is a good example. Gaddafi and Al-Senussi, and most recently Al-Werfalli, were charged based on what was handed to the OTP on a silver platter by the UN and NGOs. The latest example is the OTP’s request to the PTC for a ruling on whether the ICC has jurisdiction to prosecute anyone in the Myanmar military or government, or civilians used by the Myanmar military involved in the alleged deportation of the Rohingya people from Myanmar to Bangladesh. The issue is different, but if you look at the request, you will see that the OTP is relying exclusively on what has been reported by Human Rights Watch, Amnesty International, and others, including an author who has written a book written on the Rohingya. The OTP will probably take the same approach with Duterte of the Philippines – since he is unlikely to grant ICC investigators access to investigate in the Philippines – even though the Philippines is a State Party to the Rome Statute and has a legal obligation to fully cooperate with the ICC.

PM:     If that is the case, it is a forgone conclusion what the ICC will do.

L:     Perhaps, but not necessarily. Keep in mind that the initial threshold is rather low. But even if Bensouda decides to proceed with a full investigation, this does not mean that charges will automatically flow.

PM:     But if it is virtually a forgone conclusion, why should we bother getting involved? How do we benefit in the long run?

L:     Good question. That should be our aim – to think long-term. Strategically. But to do so, in my opinion, we need to also approach this tactically. In other words, we should position ourselves now for our long-term goal – to get the ICC to do nothing.

PM:     I’m listening.

L:     I know what I’m about to suggest will be counter-intuitive for you and others in our government and most likely the top brass at the Israel Defense Forces (IDF), but I think it is the best way to go.

PM:     Go on.

L:     We need to be engaged with the ICC. I would even go as far as to say we should embrace the opportunity. I am not suggesting that we let the OTP investigators run roughshod over us or give them carte blanche. We should allow the OTP to do its investigation so long as we can reach an arrangement of sorts. We do not want to interfere with the investigation, but we also should not sit back and assume that it will be fair, objective, and comprehensive – and by that I mean investigating everything on all sides.

PM:     Why not just stonewall them? Why lend any legitimacy to their investigation?

L:     Mr. Prime Minister, you began by asking me if I am aware of what is being reported in the press around the world. We do not do ourselves any favors – optics-wise – if we prevent the ICC investigators from investigating in Israel. Al-Bashir of Sudan can afford to take this approach. But not us; we have no African Union of sorts to support us. Israel is a beacon of liberal democracy in the region. And more importantly, if we want to be treated fairly, we also need to be engaged in the process.

PM:     Since when Israel has been treated fairly? You saw the two UN reports on the Mavi Marmara incident. The Fact-Finding mission deliberately bundled Gaza into the mix. Was that not done to overcome that gravity requirement?

L:     But…

PM:     I wasn’t finished. Do you recall how the two UN reports dealt with the blockade issue? The Panel of Inquiry said it was perfectly within our rights to impose a blockade considering all the weapons that were being smuggled into Gaza. So, how is it that the Fact-Finding mission used the opportunity to say the blockade was illegal and as a result, insinuate that we were deliberately trying to starve Palestinians in Gaza?

L:     You have a legitimate point, but please, hear me…

PM:     And while I’m at it, have you forgotten the Goldstone Report from 2009? Goldstone concluded, along with his coterie of so-called “impartial experts,” that the IDF were guilty of war crimes and possible crimes against humanity. Thankfully, he came around – but only after we pressed him to look at all relevant evidence. Oh, and then there was the high-flying superstar of supposed international legal experts, Professor William Schabas. Talk about Israel, or me for that matter, getting a fair shake. Give me a break! Schabas was going around saying all sorts of prejudicial things before he accepted to be the chairman of an international commission of inquiry to investigate alleged violations of international humanitarian laws during the 2014 Gaza conflict – claiming that I was the greatest threat for the survival of Israel and that he would like to prosecute me. So, forgive me if I am allergic to these international types that presume to know what is going on here and have reached their conclusions without knowing all the facts.

L:     Mr. Prime Minister, if I may. There are several points I would like to make.

PM:     L., make it quick. Just thinking about these so-called independent commissions that carry the imprimatur of the UN – as if it is a bastion of objectivity and good will – gets my blood boiling.

L:     My first point concerns the contours of the referral. The ICC cannot just look at one side of the events; it must look at the events holistically. It is not just a matter of what is going on from this end. It is a matter of context. So, we need to insist that any investigation must be comprehensive; it needs to look into what Hamas, Hezbollah, and other militant and extremist groups are up to.

PM:     That’s for sure. We should also insist that they investigate the not-so-invisible hand of Iran behind these groups and others.

L:     So, we will need assurances that the OTP will investigate with equal vigor what is happening to us. Here is where we can provide the OTP the information we have and the information we have relied on as the basis for our actions. Context, Mr. Prime Minster. We need to insist on contextualization of the conflict in Gaza and other events.

PM:     Do you realistically think this will make a difference? What, you expect the ICC to charge Hamas terrorists?! Get real! I can just see Abbas bending over backwards to hand over Islamic terrorists to the ICC.

L:     That is beside the point, with all due respect, Mr. Prime Minister. Our position has always been that we respond to attacks only in self-defense. And that when we do take action it is because we have to, that it is within our rights to do so, and that we are careful to be proportionate and measured. We cannot be expected to suffer innocent deaths and mutilations from rockets being fired from Gaza, suicide bombers, or these latest attacks where terrorists are mingling in and hiding among lawful protesters. The issue of proportionality will be of concern. We need to show them that, all things considered, whatever steps we take are proportional.

PM:     Correct me if I’m wrong, this referral by the PA, is it not about the entire Gaza situation? Is the PA not effectively claiming that what is happening to the Palestinians in Gaza is a long-existing, sustained, and systematic array of crimes against humanity? Is this not a ploy to get us to reduce Israel to the ‘67 borders, to dismantle the settlements, and so on?

L:     Yes. You’re correct, but this is also a double-edged sword.

PM:     Explain.

L:     There have been peace initiatives that took all of this into account. The PA has walked away, using the US’s embassy move from Tel Aviv to Jerusalem as a pretext to stir-up trouble. Then the PA, through its proxies, incites these demonstrations, provoking the IDF to overreact – or at least make it appear so. In any event, Mr. Prime Minister, the ICC is not going to delink the situation in Gaza from the ongoing events. The PA pulled a fast one on the ICC with the referral; it is part and parcel of the PA’s strategy to use the ICC as a means of internationalizing their efforts to establish their State based on the ‘67 boarders.

PM:     I am there and back L., but tell me something I don’t know.

L:     I do not think this point is lost on Bensouda. She is political but she is also pragmatic. She knows that no matter how she comes down, at the end, she is unlikely to get Israelis in the dock. Why spend all that money and human resources when the results are virtually unattainable? She knows this.

PM:     What about all the pressure she is coming under – especially from the States Parties to the Rome Statute that have it in for us?

L:     Just because Bensouda opens a preliminary examination does not mean she will be in a rush to make any findings or proceed with a full investigation. If anything, she may use the preliminary examination as a carrot and stick – to leave it open so as to not interfere with any ongoing negotiations.

PM:     You mean like “in the interests of justice”?

L:     Sort of. She is not going to say it and certainly will not invoke it, but it will have the same effect. Look what she did in Colombia. The OTP opened a preliminary examination in June 2004 and it is still ongoing. She obviously did this so as to avoid derailing the peace process between the Colombian government and FARC.

PM:     What if you are wrong? What if she presses ahead and not only completes her investigation but also hands out arrests warrants? What then?

L:     We are talking about some time down the road. She already has indicated that she will not rush her preliminary examination. But in any event, the UN Security Council could ask the OTP to defer for a year. The Rome Statute provides for this type of an intervention, if I recall, in Article 16. Even though it has not been formally invoked at the ICC yet, the African Union once referred to it in supporting Kenya’s request for a deferral of the ICC investigations and prosecutions in Kenya. The UN Security Council specifically referred to Article 16 in Resolution 1970 (which referred the situation in Libya to the ICC) implying that the referral to the ICC could be prevented in certain circumstances, perhaps in the event of a peaceful transfer of power. The US will not let us down. And of course, depending on where we are in the peace process, as you mentioned, the OTP could invoke its in the interests of justice discretionary authority.

PM:     What does “in the interests of justice” actually mean? It seems rather malleable. Who’s interests are we talking about? Is this term defined?

L:     You’re right, the term is malleable and elusive. It is not defined in the Rome Statute. The OTP has issued two policy papers trying to explain what this means. Basically, it explained that only under highly exceptional circumstances will it rely on the interests of justice to delay investigations. To me it’s quite obvious that by introducing this term the drafters of the Rome Statute intended to give the OTP a way to defer taking any action if, under the circumstances, the greater good would be best served by not acting – even in situations where all other requirements are met and the OTP is obliged to investigate and prosecute.

PM:     So, what are you proposing we do next?

L:     Set up a committee of our own experts to help come up with a comprehensive strategy.

PM:     As if we don’t have enough committees! OK, draft me a memo on this and list names of who you think should be on this committee and who you think should chair it.

L:     Will do, Mr. Prime Minister.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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