Challenging the Israeli attorney general’s conception of sovereignty: The issue of jurisdiction concerning the ‘Situation of Palestine’ before the International Criminal Court, June 2020

In this report, Adalah exposes the flaws in the attorney general's position that the ICC cannot exercise jurisdiction in this case, which is based on an outmoded, formalistic interpretation of state sovereignty.

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In this report, Adalah – The Legal Center for Arab Minority Rights in Israel responds to the Israeli Attorney General’s (AG) memorandum opposing the International Criminal Court’s (ICC) exercise of jurisdiction on the ‘Situation in Palestine’, dated 20 December 2019. Adalah is a leading human rights organization in Israel that has litigated numerous of cases before the Israeli Supreme Court (ISC) regarding the protection of the Palestinian civilian population in the Occupied Palestinian Territories (OPTs). Adalah exposes the flaws in the AG's position that the ICC cannot exercise jurisdiction in this case, which is based on an outmoded, formalistic interpretation of State sovereignty. Adalah finds both that the AG's position is not in line with current developments of international legal practice, and also that it contradicts positions that the AG himself has put forward before the ISC, as well as ISC caselaw.


This report is organized as follows.  Adalah explains in Part One that the main arguments presented in the AG’s memorandum are indicative of an outdated and increasingly irrelevant understanding of the definition of state sovereignty. For the AG, the definition of the term ‘State’ is that which is commonly accepted and recognized in general international law: that of a sovereign state. This conception of sovereignty leads the AG to claim that the exercise of the ICC’s jurisdiction in this case would violate the classical state-sovereignty principle of ‘non-intervention’.


International human rights law, however, is not concerned with the old, formalistic understanding of sovereignty and states’ rights, but rather follows a functional approach that examines how a state exercises its power over the population living within its jurisdiction or under its effective control. Significantly, the AG’s memorandum mentions no matter pertaining to the Palestinian population, and fails even to attempt to challenge or to discuss the ICC Prosecutor’s arguments regarding the prima facie war crimes committed by the State of Israel against the Palestinians. It does not discuss the State of Israel’s ‘Responsibility to Protect’ the population. Instead, it narrowly addresses the rights of a sovereign state, but without discussing the corresponding duties of a sovereign power towards the population. In other words, for the AG, claims of sovereignty precede claims of criminality.


The main goal of international legal practice today is the defense of victims, regardless of whether the actor suspected of causing them harm is a sovereign state or a quasi-state. Hence international tribunals and courts have accepted an expanded range of actors including entities that do not enjoy the status of a de jure State, or even the characteristics of a quasi-State. The AG’s claims regarding sovereignty are moreover irrelevant to the purpose of the Rome Statute, which defines criminal offenses for which individuals, and not states, can be prosecuted, and does not determine issues of sovereignty.


Adalah explains that Article 12(3) of the Rome Statute should lead to the interpretation of the term “State” as including a quasi-State when: (1) this entity is a party to the Statute; (2) enjoys a recognized international status; and (3) the case raises matters of impunity. Such an interpretation is especially relevant if the case involves a legal ‘black hole’, which arises when legality is suspended, eliminating access to justice, civil remedies, effective prosecution, penalty, and accountability for illegal killings and other serious crimes.


This contemporary interpretation fills a vacuum in protection for victims, and has nothing to do with determining whether or not Palestine is a sovereign state. It is additionally consistent with the ICC’s purpose of ending impunity. Adalah concludes herein that Articles 19 and 53 of the Rome Statute further support the position that the ICC must exercise jurisdiction on the basis of “the interests of victims” and “the interests of justice” to end impunity. The main cases of impunity concern the Gaza Strip.


Part Two of the report begins by setting the stage with background information about Israel's Disengagement from Gaza in 2005, and its declaration in 2007 of Gaza as a "hostile territory", and subsequent closure of the Strip. Following these moves, the Israel Supreme Court (ISC) redefined the legal status of Gaza in the Al-Bassiouni case, effectively declaring an end to Israel's Occupation, and ruling that Israel's only obligations towards Gaza's residents were to ensure "essential humanitarian needs". The report then reviews major ISC cases litigated between 2007 and the present concerning the denial of the right to an effective remedy in civil law for Gaza residents. These cases include attempts by the State of Israel to exempt itself from paying tort damages to Palestinians injured by the Israeli military, and the denial of entry to Gaza residents into Israel in order to pursue court cases. These cases have resulted in Israel's full immunity from civil compensation and damages, as a result of which the victims have been left without recourse to a civil remedy.


The second section of Part Two examines in detail Israeli military probes into "exceptional incidents" during the 2014 Gaza War, codenamed "Operation Protective Edge" (OPE). Adalah and Al Mezan filed criminal complaints into 28 incidents to the Military Advocate General (MAG) and the Attorney General (AG) concerning suspected criminal violations committed by Israel against Palestinian civilians during OPE, and demanded independent investigations. These cases concern the killing and serious injury of scores of Palestinian civilians, including women and children, and the massive destruction of civilian objects. None of these cases resulted in any genuine investigations, indictments or criminal proceedings. The section also discusses chronic flaws in the Israel domestic investigatory system, some of which were identified by Israeli domestic commissions of inquiry and the State Comptroller's Office. It concludes that the Israeli investigatory system as a whole, which provides near blanket impunity to the Israeli military and denies remedies to the victims as a matter of routine, and has absolutely failed to provide accountability, is primarily geared towards protecting its armed forces.


The third section of Part Two analyzes the latest ISC decision regarding the open-fire regulations used by the Israeli military against Palestinian civilian protestors during the Great March of Return March (GMR). This open-fire policy, which included the use of snipers and live ammunition, resulted in the killing of 217 protestors and the wounding of 19,000 others, many of whom suffered catastrophic and otherwise life-altering injuries. Human rights organizations, including Adalah, petitioned the ISC against the Israeli military's response to the protests, arguing that their use of force was arbitrary and excessive, and violated the protestors' rights to life and bodily integrity. In May 2018, the ISC unanimously rejected the petition, fully adopting the state’s position in the case, and afforded the military full discretion in its lethal, excessive actions to quash the protests. The ISC further held that the scope of its own intervention was very limited and narrow, and that decisions were subject to the discretion of commanders on the ground. By contrast, the UN Commission of Inquiry, which examined these events, concluded in 2019 that in the tens of cases it had examined, none of the protestors were armed or posed an imminent threat to life or limb, and thus that the use of force was unjustified.


The cases and the caselaw examined in the report show that the Israeli legal system has made Gaza into a legal “black hole” by suspending the applicability of IHL norms and mainly, Article 43 of the Hague Regulations. In addition, as shown in the report, the ISC suspends the applicability of Israeli constitutional law, including its criminal law. By this, a vacuum is created which provides a wide space of impunity that allows for the killing of Palestinians without any legal responsibility. This main feature of the status of Gaza, which has developed since the Disengagement Plan in 2005, was totally avoided by the AG in his memorandum.


These findings lead to the conclusion that, contrary to the AG's position in his memorandum, the ICC must exercise jurisdiction in defense of victims in this case, who have been left by Israel in a legal ‘black hole’ with no domestic legal recourse or remedy, civil or criminal. Thus, based on ISC caselaw, and the total discretion that the Court grants to the Israeli military, a system of impunity and lack of accountability prevails both in civil tort law and in criminal law. 


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