In its handling of a case brought against Israel by the Palestinian Authority (PA) the International Criminal Court (ICC) in the Hague instituted new procedures that one legal adviser labelled “quite crazy,” turning the ICC into “a Palestinian propaganda machine.”
The ICC issued a press release Friday concerning its investigation into complaints made by the “State of Palestine” against Israel. In the release, three judges from the ICC, Péter Kovács, Marc Perrin de Brichambaut and Reine Adélaïde Sophie Alapini-Gansou, called for the court’s 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.”
In 2015, the PA submitted to the court a “state referral,” asking the prosecutor to investigate “past, ongoing and future crimes within the court’s jurisdiction, committed in all parts of the territory of the State of Palestine.”
In the ICC statement, Palestine is defined as “the Palestinian Territory occupied in 1967 by Israel, as defined by the 1949 Armistice Line, and the West Bank, including East Jerusalem, and the Gaza Strip.”
In May, the PA requested the court investigate the crimes. The charges by the PA focus on Israeli policy that permits Jews to live in Judea, Samaria and East Jerusalem. The charges also allege Israeli crimes on the border with Gaza. The ICC is still running a preliminary examination and the chief prosecutor, Fatou Bensouda, has yet to decide whether to advance to an investigation that precedes a trial. In order to proceed, she will have to rule that Palestine is a state with jurisdiction over Judea, Samaria, East Jerusalem, and Gaza, which it is claiming as its territory. She will then need to decide if the alleged Israeli crimes fulfill the court’s gravity requirements.
Presenting the case to the ICC constituted a breach of trust by the PA since they had agreed with the US that they would not to do so. Pursuant to that agreement, a U.S. law passed in December 2015 carried penalties for the PA if it pursues the prosecution of Israelis at the Hague-based ICC. This is because the U.S. policy holds that a peace agreement between the Palestinians and Israel can only come as a result of direct negotiations without an enforced, third-party solution. The U.S. is currently considering closing the Palestinian mission in Washington D.C. over this breach of U.S. law.
A report by The Times of Israel stated that “it is almost unprecedented that a pretrial chamber would engage in active outreach to victims in a case that has not yet advanced to the stage of an investigation.” The report quoted Alan Baker, a former legal adviser to Israel’s Foreign Ministry who was involved in negotiating the ICC’s founding statute.
“This seems to me to be quite crazy, and the court is openly turning itself into a Palestinian propaganda engine, similar to the [United Nations] Human Rights Council, with a regular reporting regime on Palestine only and a distinct section of its website devoted to Palestine,” Baker told The Times of Israel. “The three ICC judges were going out of their way to cater to Palestinian victims in preparation of a trial, despite the fact that the prosecutor has not yet decided whether to open an investigation or whether the court even has jurisdiction over the territory in question.”
“All this seems to indicate that the ICC is venturing far beyond its role and is being politically manipulated, or is manipulating itself, against its own better interests,” Baker concluded.