THE CHAMBER HEREBY
a) ORDERS the Registry, to establish, as soon as practicable, a system of public information and outreach activities for the benefit of the victims and affected communities in the situation in Palestine and report back to the Chamber in compliance with the principles established in the present decision;
According to The Times of Israel, Israel has formally complained to the International Criminal Court (ICC) about the outreach program the ICC Registry is launching at the behest of the Pre-Trial Chamber (Judge Péter Kovács Presiding, Judge Marc Perrin de Brichambaut, and Judge Reine Adélaïde Sophie Alapini-Gansou) “for the Victims of the Situation” in Palestine, calling into question the ICC’s impartiality in treating Israel fairly. What took so long?
Israel has a point. And a predicament.
The ICC Office of the Prosecutor (OTP) is currently looking into the referral filed by the “State of Palestine” in May. One can debate the legitimacy of this referral, but the fact remains that it is currently under consideration by the ICC Prosecutor, Madam Fatou Bensouda. It is unclear how she will decide on the jurisdiction question: whether the ICC has jurisdiction over crimes committed in the “State of Palestine.” And no matter her position, the ICC’s Pre-Trial Chamber (PTC) is likely to weigh in as it did on the Mavi Marmara incident (see my previous posts on this here, here, and here).
Here the PTC may have tipped its hand, effectively telegraphing to Israel that it intends to find that the ICC has jurisdiction. Madam Bensouda, on the other hand, may punt, referring the matter to the PTC under Article 19(3) of the Rome Statute, just as was recently done in relation to the alleged deportation of the Rohingya people from Myanmar to Bangladesh (see the OTP’s Request here, and my previous posts on this matter here and here). Of course, the OTP would need to put down its marker on where it stands on the issue, and this could, though not necessarily, tip the balance on how the jurisdictional issues are resolved. Were the OTP to make an Article 19(3) request, expect some interesting briefs from an assortment of amici curiae.
But back to my point.
The referral is at its infancy. The OTP is (supposedly) grinding away. No decisions have been made on the host of issues related to jurisdiction, which means that if it is determined that the ICC has no jurisdiction, the referral will be set aside. End of story. Yet, for reasons that remain unclear and insufficient, the PTC, on its own initiative, instructed the Registrar to intervene and engage in an outreach campaign, which, at a minimum, raises the expectations of those claiming to be victims (I am purposely being equivocal to avoid any perceptions of having reached any conclusions).
More appallingly, the PTC seems – at least from appearances and the only available logical conclusions that can be drawn – to have already decided that the ICC has jurisdiction, that the referral (even before fully considered) will invariably lead to an investigation, and then on to charges; hence the need for an official ICC’s outreach campaign. Now it may seem that I am skipping a few steps and in no small measure leaping to conclusions that may not come to pass. Perhaps so, but that is how perceptions work. It is not so much what is intended or what is done, but what is perceived in the eye of the beholder.
The Judges, as I am aware, are honorable jurists with extensive experience. Some may argue that these actions expose their anti-Israel biases, that they have prejudged the matter, that they have been coopted into the “Palestinian Propaganda Engine,” as Alan Baker, an Israeli expert in international law and former ambassador of Israel to Canada, put it. I beg to differ. Good judges are not immune from making serious errors of judgment; this may be one of those occasions.
I see no such nefarious scheming or attempts by these (or other) Judges to be doing the Palestinians’ bidding of politicizing the ICC and turning it into a Palestinian “‘back-yard tribunal’ to hassle Israeli leaders and senior military commanders,” as Baker argues. Nor do I buy into his claim that the ICC (through these PTC Judges) “is being politically manipulated – or is manipulating itself – against its own better interests.” I can appreciate one jumping to such conclusions when there are indicators suggesting that Israel is unlikely to get a fair shake from the ICC (see my earlier post, 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), but indulging in such hyperbole is unpersuasive and unhelpful; the message gets lost in the hype.
What I do see are the optics: appalling. I have no reason to conclude that the ICC as a judicial institution is inherently biased against Israel. But the PTC’s instructions to the Registrar to establish a public information and outreach activities for the “victims and affected communities in the situation in Palestine” sure lends to the perception that the ICC harbors an anti-Israel bias. So much so, that it becomes understandable why Israel has every reason to distrust the ICC – more so now than ever. This also feeds into the broader debate as to what exactly is the ICC: an impartial judicial institution or a pseudo-judicial political tool? Plenty have argued that it is the latter, and not without some, albeit spurious, justification.
Now onto Israel’s predicament. I noted it was about time. Frankly, Israel has wanted it both ways. On the one hand, it does not necessarily recognize the ICC. If past is prologue, it is unlikely to allow the ICC investigators to conduct a thorough investigation in relation to the Palestinian referral were Madam Bensouda to proceed with an investigation. On the other hand, Israel challenges the ICC’s jurisdiction, but were it to loose this battle, it is not likely to cooperate. Fair enough. But why then bother to challenge the jurisdiction, if the intent is to stonewall the ICC were it to find that it has jurisdiction over crimes in the area represented as the “State of Palestine.” Would it not be more consistent were it to utterly ignore the ICC? I think yes. And if I am correct, Israel should not have bothered to launch a complaint against an institution which it does not recognize, and which from appearances, seems anti-Israel to boot?
Israel should be clear where it stands. Nothing requires Israel to recognize the ICC. Nor is Israel required to cooperate with it. There may be a political price to be paid were the Palestinian referral lead to charges, but how impactful could this be if the ICC is, at a minimum, perceived to be anti-Israel. There may come a time when certain individuals may have trouble traveling to States that are Parties to the Rome Statute and under an obligation to execute arrest warrants against anyone charged of crimes by the ICC, though Sudan President Omar Al-Bashir serves as a good example in demonstrating that many States Parties are unwilling to make such arrests (see here, here, here, and here).
To put it mildly, the ICC has not done itself any favors by presumptively (so it seems) siding with the “State of Palestine” and effectively prejudging, in the court of public opinion, the Palestinian referral. The ICC should take Israel’s complaint seriously. It may be too late (or embarrassing) for the PTC to counter-instruct the Registrar to abandon the outreach campaign, but it should provide some clarity on where it stands, and it should explain how it is that their decision does not amount to a prejudgment – actual or perceived. As for Israel, it should not be looking to the US (as Baker suggests) to intervene. Would this not amount to political interference? Would this not be an attempt to politically manipulate the ICC?