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A few days after the outset of Israel's three-week offensive in Gaza that ended on January 18, a lawsuit was filed by several French pro-Palestinian organizations against the Israeli president, foreign minister and defense minister. The Rome Statute, the founding document of the International Criminal Court in The Hague, was cited as the legal basis for the suit.
The organizations demanded that France, which presided over the UN Security Council at the time of the filing, initiate a discussion of the suit at the council, hoping for a Security Council resolution referring the case to the International Criminal Court.
However, the International Criminal Court has jurisdiction only over nationals of states that have signed and ratified the Rome Statute. Israel has not ratified the statute, and its citizens are therefore not subject to it.
Yet Article 13(b) of the court's statute establishes its jurisdiction over cases referred to it by the Security Council in accordance with Chapter Seven of the UN Charter. This article was the legal foundation for the court's authority over crimes committed in Sudanese Darfur. In that case, all the members of the Security Council voted to refer the case to the court, including the United States, which is also not a party to the Rome Statute.
The International Criminal Court began operating in July 2002. Since its inception, it constitutes a permanent tribunal, with supplementary authority to the states' authority to prosecute individuals for crimes of genocide, crimes against humanity, and war crimes. Another crime mentioned in its mandate, whose definition is still under deliberation, is that of "aggression."
Since it was impossible to reach an agreement about the issue of terrorism, that subject is not within the court's purview. Many countries and organizations view the use of terror in a war of self-determination to be a legitimate act of war.
Israel's problem with the ICC
Why has Israel refrained from ratifying the statute? One article of the statue, which consolidated the politicization of the court, is the primary cause for Israel's decision: the article that deals with the transfer of populations.
Article 8(b) 8, the section defining war crimes in the Rome Statute, discusses: "The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory."
This article was copied almost word for word from the 1977 First Protocol of the Geneva Convention of 1949.
The article clearly emphasizes forced transfers of populations. Its intentions are even clearer when we remember it was drafted in response to the forced relocation of populations in Europe during the WWII (e.g., the transfer of Germans into former Czechoslovakia).
In the Rome Statute, this article expanded ad absurdum the Nazis' forced repopulation program, which was reasonably defined as a war crime under the Geneva Convention. The statute now defined any voluntary movement of people, either directly or indirectly, by any means, as a similar crime under the Rome Statute.
But what is the connection between this distortion and the original intent of the Rome Statute, which was to establish a court to deal with horrible and intolerable trespasses against humanity? Here the intent was to have Israeli settlements in the West Bank internationally acknowledged as a most serious crime which should therefore be subject to the court.
Individual states seek to exerciseuniversal jurisdiction
Yet another way to prosecute suspects for heinous violations of international law may be found in certain states that have adopted laws involving "universal jurisdiction."
The Rome Statute established the primary commitment of states to exercise their jurisdiction and prosecute individuals suspected of responsibility for such crimes in national courts.
Universal jurisdiction refers to the power of a state to legislate, adjudicate, and punish any individual for crimes committed outside its borders, even when those crimes were not committed against that country or its citizens, and even if the accused is not its citizen. The idea is that anyone who commits such atrocious, internationally condemned crimes will not be able to find shelter or hide from judgment anywhere on the globe.
The definition of these crimes is the result of historical processes. The constituting treaty of the Nuremberg trials, for example, determined that these criminals may be prosecuted by the national justice systems of all the countries party to the established international court. Therefore, it was determined that crimes against peace, war crimes, and crimes against humanity are crimes in all states, and all states can prosecute individuals who were responsible for committing them.
In another example, the Rules of War were expanded by the 1949 Geneva Convention, and demarcate the line between "right" and "wrong" in times of war. They also define what are benign and flagrant violations. They entrust each individual state with the responsibility to locate and prosecute violators, even if the crime was committed outside its jurisdiction and was not directed against it or its citizens. The description of the flagrant violations extended the definition of war crimes beyond their Nuremberg definition and subjected them to universal jurisdiction.
It is important to note that human rights organizations all over the world have been instrumental in the implementation of universal jurisdiction, as they were, for instance, in actions filed against former prime minister Ariel Sharon and others in the case of the massacre of Palestinians by Christian militias in Sabra and Shatila in Lebanon. This has contributed to the entry of politics into the universal jurisdiction process, as may be seen in many actions brought by NGOs that are supported financially by special interest groups or even states for the benefit of their own agendas.
No need for external intervention in cases under Israeli jurisdiction
It is important to remember that universal jurisdiction and the International Criminal Court are applied when a country does not or cannot act to prosecute. To my regret, since IDF officers have been subject to universal jurisdiction in different countries, it appears that some include Israel in the category of states that would not or cannot take action against such crimes.
Here the answer is clear. Israel is a democracy with a well-developed judicial system, as the statistics below prove. The military judicial system is separate from the civilian courts, with the ability to appeal decisions handed down in a lower court. The Israel Supreme Court, sitting as the High Court of Justice, receives complaints against the military courts and against the discretion of the military prosecution.
The military police reported that between 2000 and 2007, Israel's military judicial system conducted 272 investigations of illegal firing of weapons, with 31 indictments and 17 convictions; 330 investigations of property damage, with 36 indictments and 36 convictions; 475 investigations of violence, with 37 indictments and 34 convictions; and 128 investigations of crimes in the Palestinian areas, with 20 indictments and 18 convictions. The case of Salah Shehadeh, mentioned above, has already been reviewed thoroughly by Israel's Supreme Court, which is widely respected in the international legal community. What would a Spanish court have to add?
In 2008 there was a large increase in the number of complaints, investigations and convictions. This may be due to the establishment in October 2007 of a new unit - the Military Advocate for Operational Affairs. This unit deals with two types of cases: complaints involving Palestinians and training accidents.
Let us recall that during the First Lebanon War in 1982, an Israeli investigative panel consisting of two sitting Supreme Court justices and a senior army officer was established to investigate the actions at Sabra and Shatila, while Lebanon pardoned all those responsible for the crimes committed there. As a result of this panel, then-defense minister Sharon was removed from his post. Nevertheless, Belgium decided to attempt to prosecute Sharon. Doesn't this have the ring of political influence?
Political exploitation of universal jurisdiction
A particularly problematic aspect of this issue is political exploitation of universal jurisdiction. Dr. Henry Kissinger wrote in 2001 that in the course of less than 10 years we have witnessed an unprecedented movement to turn international politics into legal proceedings, an argument mentioned with growing frequency.
When prosecution is initiated by a country not wholly unrelated to a case, there is always the very real possibility that it is doing so for political reasons. International law does not require that the prosecuting country be neutral or politically impartial to exercise its jurisdiction in a given case.
It is interesting to note how some African nations view universal jurisdiction. Recently, Rose Kabuye, director-general of state protocol in Rwanda, was arrested in Germany in accordance with a French extradition warrant. This is an example of why some African nations refer to universal jurisdiction as Western judicial imperialism, because they do not see cases brought by one Western nation against another Western nation. Could you envision a European state bringing action against US generals and politicians for war crimes in Iraq? Belgium considered it, but was deterred by the US threat to remove NATO headquarters from Brussels.
There is no doubt that the will of a country to arrest and prosecute is affected by its relationship with the country where the crimes had been committed and by its military and economic strength. For example, former British prime minister Margaret Thatcher's strong criticism of Augusto Pinochet's arrest was influenced by the aid he offered Great Britain during the Falklands War.
Many countries are careful to limit their view of universal jurisdiction to a demand that either the suspect or the victim be in their territorial jurisdiction for such a process to begin. The purpose for which universal jurisdiction was created may be a worthy and noble one. However, its current execution is problematic, to say the least.
Irit Kohn, Esq., joined the Justice Ministry in 1989 and from 1995 to 2005 was director of its International Affairs Department. In that position she was involved in one of the first cases involving universal jurisdiction as head of the legal team defending prime minister Ariel Sharon in Belgium in 2001. In 2004, she was elected vice president of the International Association of Jewish Lawyers and Jurists. This analysis is based in part on her presentation on November 26, 2008, at a conference in London on "Averting Abuse of Universal Jurisdiction." Reprinted by permission of the Jerusalem Center for Public Affairs.