The Palestinians have undertaken a regular mode of ceremonially issuing complaints to the International Criminal Court against Israeli leaders and military commanders regarding virtually everything Israel does.
These are clearly a series of public relations exercises as part of their “lawfare” against Israel.
In fact, they are trying to politicize this international court and turn it into their own “backyard tribunal” to hassle Israeli leaders and senior military commanders.
In a recent unprecedented and uncalled-for determination by one of the court’s pre-trial chambers more than a month ago, they ordered a campaign of outreach to Palestinian victims, “within or outside of Palestine” to better assist the court in their communicating and interacting with the court. The aim is also “to better understand their rights, to assist the court in fulfilling its role and to better advance the interests of justice and protect the rights of victims” (paragraph 12 of the decision).
The decision presents such outreach activities as an attempt aimed to “clearly indicate the general parameters of the Court’s jurisdiction in relation to the situation in Palestine.”
Does the court even have jurisdiction?
This is even more curious in light of the fact that the court has yet to decide whether it indeed has any jurisdiction whatsoever regarding the Palestinian complaints, and whether a non-state can indeed be a party to the ICC statute.
Paragraph 4 of the decision recites the Palestinian initial submission referring to the Court’s jurisdiction to investigate crimes—past, ongoing and future within the court’s jurisdiction, committed “in all parts of the territory of the State of Palestine … comprising the Palestinian territory occupied in 1967 by Israel, as defined by the 1949 Armistice Line, and includes the West Bank, including East Jerusalem and the Gaza Strip.”
The chamber is thus ordering the creation of an “informative page on the court’s website, especially directed to the victims of the situation in Palestine” (paragraph 16), as well as a three-monthly reporting mechanism!
This is quite amazing and unprecedented, and the court is openly turning itself into a Palestinian propaganda engine, similar to the U.N. Human Rights Council, with a regular reporting regime on Palestine and a distinct section of its website devoted to Palestine.
All this despite the fact, referred to in the decision that the prosecutor has yet to decide to open an investigation on the Palestinian complaints.
Similarly, despite the fact that no juridical body of the court has determined that it has jurisdiction over territory that is not held by the Palestinians, the permanent status of the territory has yet to be agreed upon pursuant to the still valid Oslo Accords, to which the Palestinians are committed and the international community has endorsed.
What ‘State of Palestine’?
Similarly, this measure ignores the basic question whether, pursuant to the ICC Statute, a “State of Palestine” can be party when no Palestinian state exists, apart from in a non-binding General Assembly upgrade recommendation, which is far from being a legal ground for acceptance.
All this indicates that the ICC is venturing far, far beyond its role and is being politically manipulated—or is manipulating itself—against its own better interests.
It is to be hoped that the responsible Israeli, American and other serious authorities will approach the Prosecutor criticizing this decision, stressing that it implies a prejudgment and runs against the principles behind the very concept of the ICC.
The court’s actions damage the credibility and reputation of the court as a serious international objective juridical body.
Ambassador Alan Baker is Director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.