Will the ICC Prosecutor be tempted by Israel’s settlement regulation bill?

On 5 December 2016, the Israeli Knesset approved a new draft of a bill recognizing West Bank settlement outposts – some 4,000 settler homes built on private Palestinian land. This measure has proved to be controversial, characterized by some as an illegal land grab. And by most accounts, it now appears that this measure was the tripwire for UN Resolution 2334 (2016), “reaffirm[ing] that the establishment by Israel of settlements … has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.”(( United Nations Security Council Resolution 2334 (2016), S/RES/2334 (2016), 23 December 2016.)) Expectedly, acrimony and recrimination has followed.

One embarks on a discourse about Israel, Palestine, and the International Criminal Court (ICC) at his or her risk. Emotions run high on all sides. Comments made even with the best of intentions, and however measured, can draw fire, friendly and otherwise.  Difficult to have a friend-to-friend discourse without being labeled naïve, insensitive, pro-this or anti-that.

So, it is with trepidation that I write this post.  My intent is not to go into politics or to analyze the legal rights or justifications on any of the issues related to the legality or illegality of settlement or outpost building, the viability or soundness of a two-state solution, UN Resolution 2334 (2016), and so on.  It is also not my intention to provoke, though provoke I probably will.

Recently I posted on the Office of the Prosecutor’s (OTP) Policy Paper on Case Selection and Prioritisation (Policy Paper). I noted that ICC Prosecutor Fatou Bensouda has expressed her intent to focus on investigating and prosecuting crimes “committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.”(( ICC-OTP, Policy Paper on Case Selection and Prioritisation, 16 September 2016, (Policy Paper), para. 41 (italics added). ))  I pointed to one example as a potential target of future investigations for “widespread and systematic land grabbing conducted by the Cambodian ruling elite” as crimes against humanity alleged in the communication filed with the OTP by Global Diligence LLP.(( See Joint Press Release and a link to the Executive Summary of Article 15 Communication submitted by international lawyer Richard J. Rogers of Global Diligence LLP on behalf of individual Cambodian victims, and backed by the International Federation for Human Rights (FIDH) available at Richard Rogers of Global Diligence LLP Files An Article 15 Communication At The International Criminal Court, Global Diligence, Joint Press Release, 7 October 2014.)) The OTP’s last 2016 Report on Preliminary Examination Activities has no information on any activity being carried out by the OTP on the communication filed by Global Diligence LLP, though future action by the OTP cannot be excluded.(( According to the Report on Preliminary Examination Activities, 14 November 2016, since 2015 the OTP received 477 communications relating to Article 15 of the Rome Statute. Three hundred and fifty-six of these communications were manifestly outside the ICC’s jurisdiction. Twenty-eight warranted further analysis, 72 were linked to a situation already under analysis, and 21 were linked to an ongoing investigation or prosecution. The OTP has received a total of 12,022 Article 15 communications since July 2002.))

My point is that Bensouda has publicly expressed a new or expanded focus for potential investigations that include issues dealing with government-sanctioned (or acquiesced) acts of dispossessing landowners of their land.  Of course, a certain threshold has to be met, and as the Policy Paper appropriately notes, gravity is a primary factor.(( According to paragraph 6 of the Policy Paper, gravity remains the “predominant case selection criteria.” For more on criteria for preliminary examinations, see my earlier post, The ICC-OTP’s November 2016 Report on Preliminary Examination Activities: Some Observations, 22 November 2016.))

Against this backdrop, my attention was caught by Professor Alan Dershowitz’s comments at an event for the Matan Institute for Women’s Torah Studies in Ra’anana (Matan Institute) on 13 December 2016. For those who may be unfamiliar with Dershowitz, he is a retired Harvard Law School professor, author of 20 books, a recognized leading authority in criminal and constitutional law, a fearless advocate, and a staunch supporter of Israel. Love him or hate him, his legal mind is as impressive as it can be intimidating.

Excerpts of Dershowitz’s own words as reported:

If the Amona bill is passed, two things will happen: One, the International Criminal Court, which is now reluctant to take jurisdiction, will take jurisdiction. It will be a provocation.… Second, if the Amona bill were to be passed in the next two weeks, the president of the United States would have no choice but to say I’m not going to veto the French Security Council resolution condemning Israeli settlements.

[…]

You cannot ignore that reality. You can disagree with it. And you should ignore the reality if it affects Israel’s security. But you cannot ignore that reality when it comes to political considerations around the settlements. And that’s a tough message for me to give you, but I’m giving it to you from the heart.

[…]

There is no justification under Israeli law for creating illegal settlements.
So that’s the first thing that should stop. Second of all, settlements on land owned by Palestinians should be stopped. Third, it’s not enough to take land and give payment for that.  That doesn’t satisfy international law.(( Yonah Jeremy Bob, Dershowitz: ICC will go after Israel if settlement bill passes, Jerusalem Post, 14 December 2016.))

Ever since UN Resolution 2334 was passed 14-0 (the United States abstained), Dershowitz has been unrestrainedly attacking President Barack Obama((Douglas Ernst, Dershowitz rips Obama for Israel ‘bait-and-switch’ at U.N.: ‘He just stabbed them in the back’, The Washington Times, 27 December 2016.)) and Secretary of State John Kerry((Alan Dershowitz, Dershowitz: Kerry speech will make peace with the Palestinians much harder, Jerusalem Post, 30 December 2016.)) (for his speech critical of Benjamin Netanyahu’s policies related to the peace process, to which, inexorably, the issue of settlement building on land considered occupied is a factor).  Whether Dershowitz is right or wrong in his criticisms is of no concern for the purposes of this post.  What Dershowitz said at the Matan Institute is of interest, and may be of concern to some members of the Israeli Knesset.

Dershowitz prophetically warned that if the settlements regulation bill passed, the ICC would target Israelis and the Obama administration would take a pass at the UN Security Council on an anti-settlement resolution. Dershowitz was obviously reading the proverbial tea leaves, and a UN resolution, such as the one that was passed, was an anticipated reaction.

Dershowitz’s message should be considered a clarion call: passing legislation to retroactively legalize unauthorized outpost-settlements, built on land claimed to be privately owned by Palestinians in exchange for financial compensation, comes with serious legal consequences.  Hard to imagine that Dershowitz did not have in the back of his mind the OTP’s preliminary examination of alleged crimes related to the 2014 Gaza War – Operation Protective Edge.(( ICC-OTP, Report on Preliminary Examination Activities, 14 November 2016, paras. 109-110.  See also Palestine, Declaration Accepting the Jurisdiction of the International Criminal Court, 31 December 2014. The situation in Palestine has been under OTP’s preliminary examination since 16 January 2015. Most recently, on 22 November 2016, a group of Palestinian human rights organizations submitted a 145-page communication with additional information on the crimes committed in the situation in Palestine. See Palestinian Human Rights Organizations and Victims’ Communication to the International Criminal Court Pursuant to Article 15 of the Rome Statute requesting Investigation and Prosecution of the Illegal Closure of the Gaza Strip: Persecution and Other Inhumane Acts Perpetrated against the Civilian Population as Crimes against Humanity, November 2016, by Al-Haq, Al-Mezan Center for Human Rights, Palestinian Centre for Human Rights, Aldameer Association for Human Rights, available here.))

I have been critical of the Pre-Trial Chamber’s (PTC) decision ordering the OTP to launch a full-blown investigation into the Mavi Marmara incident. After the OTP in its preliminary examination reviewed the evidence it was provided (including two UN reports by different commissions), it determined that although “there is a reasonable basis to believe that war crimes were committed on board the Mavi Marmara during the interception of the flotilla[,]”((ICC-OTP, Situation on Registered Vessels of Comoros, Greece and Cambodia, Article 53(1) Report, 6 November 2014, para. 19.)) the requirement of sufficient gravity had not been met in order to initiate an investigation.(( Id., paras. 3, 24.)) Nonetheless, the OTP’s decision was overridden by the PTC.(( Situation on Registered Vessels of The Union of The Comoros, The Hellenic Republic of Greece and The Kingdom of Cambodia, ICC-01/13-34 16-07-2015 14/27 EC PT, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, 16 July 2015, para. 23.))  My take is that the PTC’s decision smacks of politics: putting a thumb on the gravity scale, and, consequently, backdooring the situation in Gaza through the Mavi Marmara incident.

And now the thrust of my post.

Israel rightfully should be suspicious of the ICC. The adjective “international” in this court’s moniker may give the impression that this judicial institution is of the highest caliber, of the purest intentions and beyond the fray of geopolitical gamesmanship, but that it is just that: an impression. It is a myth – an aspiration at best – to claim that the ICC (at least as it currently operates) is a paragon judicial institution.

That said, the ICC is not to be ignored. Nor should it be considered inconsequential.  Far from it.  The ICC is imperfect. It continues to be a work-in-progress. But, it is a reality. The ICC has a mandate that 124 states and the UN recognize and support. The fact that some permanent members of the UN Security Council have opted not to be part of the Rome Statute makes no nevermind, especially in the light of UN Resolution 2334 and the ongoing preliminary examination of the situation in Palestine.

Dershowitz’s advice is sage and worth considering.

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