Last Friday night, the International Criminal Court (ICC) ruled at a pre-trial hearing that it has jurisdiction to open a probe into allegations of war crimes in the West Bank, Gaza and East Jerusalem – a controversial ruling that has been condemned by the United States, Germany, Australia, Canada and others.
The decision is based on the disputed legal interpretation that Palestine qualifies as a state party to the Rome Statute, despite it not meeting the criteria for statehood under international law. This sets a precedent that non-state actors may initiate proceedings at the ICC.
The ICC’s chief prosecutor, Fatouh Bensouda, will now decide whether to launch an investigation, indicating in 2019 that this is her intention. Her term as prosecutor is due to expire in June, however, and her successor may decide not to pursue the matter.
CFI Parliamentary Chairmen Rt. Hon. Stephen Crabb MP and Rt. Hon. The Lord Pickles, and CFI Honorary President Lord Polak CBE said: “The ICC’s controversial ruling has been rightly condemned by some of the UK’s closest allies and we have raised our concerns at the highest levels. The ruling, which has no basis on international law, sets a dangerous precedent that increases the risk of politically-motivated, vexatious prosecutions against the UK’s Armed Forces. The regrettable decision not only damages the integrity of the ICC, but stands to harm the peace process at a time of renewed optimism”.
The US State Department said it “objects to the ICC decision. Israel is not a State Party to the Rome Statute. We will continue to uphold President Biden’s strong commitment to Israel and its security, including opposing actions that seek to target Israel unfairly”.
German Foreign Minister Heiko Maas said that “the court has no jurisdiction because of the absence of the element of Palestinian statehood required by international law”, while Canada’s Foreign Ministry stated that “Palestine is not a state and therefore international conventions do not apply to it, including the Rome Treaty, on which the Tribunal was founded”.
Australia’s Foreign Ministry expressed “deep reservations over the ICC’s ruling. We have made this clear to the pretrial chamber. The ICC should not exercise jurisdiction in this matter”.
The ICC was established as “a court of last resort”, which “seeks to complement, not replace, national Courts”. The Court was set up to deal with grave crimes by international offenders in countries with a legal vacuum, yet Israel’s Supreme Court is internationally seen as a bulwark of civil and human rights. This places Israel outside the scope of the ICC’s declared mission statement.