The ICC Pre-Trial Chamber’s decision that the Prosecutor has jurisdiction in the Palestinian case is deeply flawed and confirms Israels long-standing concerns that the Court may be susceptible to politicisation. The ICC was established in 2002 following the Holocaust, the Genocide against the Tutsi and other horrors of the twentieth century, in order to bring to justice those responsible for atrocities that shock the conscience of humanity. Absent a referral by the UN Security Council, the ICC has jurisdiction only where the relevant state has delegated its criminal jurisdiction to the Court. Additionally, as a court of last resort, the state must be either unwilling or unable to prosecute the case itself, in order for the Court to step in. Simply put, the ICC does not possess universal jurisdiction. In fact, the Court wholly lacks jurisdiction over the so-called situation in Palestine. The Rome Statute clearly stipulates that the Court only has jurisdiction in cases brought before it by sovereign states; a sovereign Palestinian State does not exist and never has. Despite these facts, the ICC’s Pre-Trial Chamber ruled that the Court has territorial jurisdiction in the Palestinian case. In a recent decision, two judges found that the Court has territorial jurisdiction in the West Bank, East Jerusalem and the Gaza Strip. Their decision was based not on legal sources, but rather on a political non-binding UN General Assembly Resolution. In fact, it was for these very reasons that Presiding Judge Péter Kovács’, opposed the majority opinion of the Pre-Trial Chamber. In a highly critical dissenting opinion, Judge Kovacs stated that the Majority’s approach has “no legal basis in the Rome Statute, and even less so in international law”, as well as that “acrobatics with provisions of the Statute cannot mask legal reality”. It is worth noting that the dissenting opinion reflects the official positions submitted to the Court by seven leading States Parties, such as Germany, Austria, Australia, Brazil, the Czech Republic, Hungary and Uganda, as well as international law experts. Jurisdiction goes to the heart of the integrity of the judicial process. It is not a mere formality, nor technicality: it plays a critical role in preventing abuse of the judicial process. Jurisdiction is the factor that distinguishes a non-partisan judicial body from a political one. By turning to the ICC, the Palestinians attempt to turn the Court into a political tool and push the Court to determine political issues that should be resolved through direct negotiations, and not through criminal proceedings. Theyve perverted the concept of jurisdiction for the sake of advancing their own political interests, corrupting the Courts integrity and ability to stick to its core mandate in the process. By adopting this damaging decision – and by continuing to chase democracies, with independent and effective legal systems, that are fighting terrorism in such places as Iraq, Afghanistan, and Gaza – the ICC’s Pre-Trial Chamber has overstepped its core mandate. The United States, Canada, Australia, Germany and others have already expressed reservations over this decision. Israel has valid legal claims over the same territory that the Palestinians have sought to submit to the ICCs jurisdiction. The agreement between Israel and the Palestinians to resolve their dispute over the future status of this territory through negotiations is widely accepted by the international community when it comes to this matter. The recent normalization agreements between Israel and some Arab countries are further proof that the only way to achieve genuine peace is through direct negotiations. The involvement of the ICC in this bilateral conflict will have a detrimental effect on the capacity to achieve genuine dialogue and negotiations between Israel and the Palestinians. Attempting to criminalize aspects of the longstanding dispute between Israel and the Palestinians produces further polarization, exacerbates the conflict, and distances the ultimate goal of peace. The ICC’s latest decision has turned the Court into a political tool, diverted it from its original mandate and undermined the values for which it was established. However, it is still not too late to shift course to the right path and the responsibility for doing so rests on the shoulders of the Prosecutor, who enjoys full discretion on this matter. The writer is the Ambassador of Israel to Rwanda.
