A report published on Thursday by left-wing NGO B'Tselem slammed Israel for claiming that the International Criminal Court has no jurisdiction in "Palestine" as relying "on intentional misquotation, disregard for international law and an absurd misrepresentation of reality," the Jerusalem Post reported.
The ICC Pretrial Chamber is expected to decide sometime after March whether to recognize a "State of Palestine" and approve a full criminal probe of Israel and Hamas for alleged war crimes.
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On December 20, ICC Prosecutor Fatou Bensouda said she was ready to move forward on allegations against Israel relating to Operation Protective Edge in Gaza in 2014 and the settlement enterprise, as well as potentially the 2018-2019 Gaza border conflict.
Israel quickly filed two briefs arguing that since there is no sovereign Palestine to refer a case to the ICC, its intervention would simply politicize a diplomatic dispute that Israel and the Palestinians must resolve in negotiations.
Several countries and NGOs have filed legal briefs to support each side of the legal dispute, but B'Tselem is now the first Israeli NGO to support the Palestinian side, according to the report.
B'Tselem's counter-brief does acknowledge that the "status of a 'non-member observer state,' such as that of Palestine, does raise questions that the drafters of the Rome Statute likely never imagined and therefore did not address in the Statute itself."
However, the B'Tselem analysis then criticizes Israel's arguments point by point saying that, "the Prosecutor actually calls for a broad reading of the ICC's jurisdiction that sees past the rigid, traditional concept of a sovereign state. The argument is that an expansive interpretation would more accurately reflect the object and purpose of the Rome Statute, which include combating immunity for perpetrators of serious crimes."
B'Tselem, according to the report, suggests that the Rome Statute define a "state" in a broader fashion, whereas Israel maintains that the ICC's Rome Statute must define a "state" the same way the Vienna Convention does, requiring full sovereignty and control over territory, borders and other functions.
The NGO said that using the Vienna Convention definition "would actually constrict the powers of the ICC, an institution designed to combat the immunity of persons responsible for the gravest of crimes, which 'shock the conscience of humanity' and 'threaten the peace, security and well-being of the world.'"
B'Tselem, a long-time critic of Israeli policy regarding the Palestinians, also cited provisions to support the case for "Palestine" which invite ICC intervention under circumstances where a country is unable or unwilling to carry out its responsibility as a state to prosecute war crimes, while Israel notes several provisions of the Rome Statute which appear to indicate only a fully sovereign state could fulfill the Statute.
The Israeli government also cites the principle of complimentarity – the notion that the ICC cannot intervene if a nation probes its own alleged war crimes – as proof that the cardinal principle of the ICC is respecting national sovereignty.
B'Tselem responded that "the principle of complementarity is intended not to preserve sovereignty but to serve justice, adding that 'justice may not suffer the fate of the neglected orphan in the province of national sovereignty.'"
The NGO, the Jerusalem Post reported, said that Israel's brief "overlooked the international community's positions on Israel's policy in the Occupied Territories for more than 50 years, and absurdly misrepresented reality."
In other words, B'Tselem views anti-Israel resolutions by the UN Human Rights Council or UN General Assembly as binding moral and legal positions, while Israel dismisses them as political.
Israel has further argued that the ICC cannot intervene because taking sides in a two-party conflict, including prosecuting the construction of settlements, does not match the crimes of genocide as in the Holocaust against the Jews for which the ICC was created.
B'Tselem assailed that argument, saying: "With shameless cynicism, Israel is trying to use these very horrors to justify continued oppression, land grab and killings at its own hands, dismissing global efforts over the last 75 years to…help form a world based on justice, equality and dignity for all."
B'Tselem Executive Director Hagai El-Ad said, "Israel's attempt to clutch at formalistic straws to evade the ICC's jurisdiction is shameful…Palestine is not a 'sovereign state' precisely because it is under Israeli occupation, whose crimes the ICC has the jurisdiction – and responsibility – to investigate."
