Israel's defender against the ICC speaks out after retirement - exclusive

Israel defender Roy Schondorf gives his first interview since his retirement as deputy attorney-general for international law.

 ROY SCHONDORF in Jerusalem: Loves the law. Background: Supreme Court (photo credit: MARC ISRAEL SELLEM)
ROY SCHONDORF in Jerusalem: Loves the law. Background: Supreme Court
(photo credit: MARC ISRAEL SELLEM)

It was 2009.

Hoshea Gottlieb, an aide to then-justice minister Daniel Friedmann in the fading days of the Ehud Olmert administration, reached out to a private sector Israeli lawyer who had returned from seven years abroad, having previously served in the IDF’s International Law Department.

His request would have a major impact on the handling of Israel’s challenges in the international legal arena and the playing field of war crimes allegations and lawfare for the next 13 years.

Gottlieb wanted to know whether Roy Schondorf would come in for a meeting led by justice minister Friedmann, to discuss the strategy with regard to the first Palestinian attempt to embroil the International Criminal Court in the Israeli-Palestinian conflict. Around the same time, an idea of setting up an elite Justice Ministry task force emerged.

The role of the task force would be not only to enter “legal combat” with the Goldstone Commission, whose report finding Israel guilty of war crimes during Operation Cast Lead was issued a few weeks before the task force’s establishment, but primarily to fend off attempts to get the ICC and other foreign courts to prosecute Israelis for alleged war crimes.

 INTERNATIONAL CRIMINAL Court, The Hague.  (credit: PIROSCHKA VAN DE WOUW/REUTERS) INTERNATIONAL CRIMINAL Court, The Hague. (credit: PIROSCHKA VAN DE WOUW/REUTERS)

From there, Schondorf told the Magazine in his first and exclusive interview since stepping down on July 1, he would eventually meet with then-attorney-general Menachem Mazuz, who would ask him if he would be interested to be considered for the role.

Surprisingly, Schondorf did not say yes on the spot. He expressed great interest but wanted to ensure there were sufficient resources necessary for success. He believed that a committed budget, committed staff and having a direct line to the attorney-general were essential.

The resources he asked for were all granted. The task force received an unprecedented, completely new NIS 40 million budget, the ability to recruit top lawyers and other personnel, and a direct reporting line to the attorney-general and the state attorney.

Later on, in October 2013, a government committee would nominate him for the position of the country’s deputy attorney-general for international law.

Along the way, he worked with justice ministers Yaakov Neeman and Tzipi Livni. As deputy attorney-general, he would also work extensively with justice ministers Ayelet Shaked and Gideon Sa’ar, while working briefly with those who held the justice minister role for shorter terms: Amir Ohana, Avi Nissenkorn and Benny Gantz.

Schondorf also worked extensively with attorneys-general Yehuda Weinstein and Avichai Mandelblit, with a brief overlap with the current officeholder, Gali Baharav-Miara.

Most importantly, he frequently joined the weekly meetings of the prime minister and the attorney-general, where sometimes the only people in the room were himself, Weinstein or Mandelblit and then-prime minister Benjamin Netanyahu. In these meetings, the prime minister and the attorney-general discussed some of the most sensitive legal matters for Israel. One of them was the legal challenge presented by the Palestinians at the ICC. 

Some of the key moments in his tenure with the ICC included the April 2012 warding off of the first try by the Palestinians to go after Israel; ICC prosecutor Fatou Bensouda’s decision to open a preliminary review in January 2015; Israel’s decision to open an informal dialogue in summer 2015; Bensouda’s decision to push for a criminal probe in December 2019; and the ICC Pre-Trial Chamber’s decision to allow the probe in February 2021.

In these meetings, the attorney-general naturally took the lead with Netanyahu, but Schondorf actively participated and often led in answering Netanyahu’s more detailed questions about the ICC and other international legal matters.

Schondorf confirmed that Netanyahu was interested and capable of asking probing questions getting into lower-resolution levels of the ICC.

The former deputy attorney-general also worked extensively with former prime minister Naftali Bennett and even received a special call from Bennett thanking him for his service when he stepped down – not a call that every Justice Ministry official gets.

“It was very impressive. He [Bennett] was very focused, fair, proper and straightforward. He learned fast and invested a lot to learn and better understand” the legal information, Schondorf said. “[Bennett was] also very smart, got into the details. It helped that he had already been in the cabinet.”

In addition, Schondorf was a frequent participant at cabinet meetings on a variety of issues, including strategic discussions about using force in other countries, whether in Syria, Gaza or elsewhere, but also strategic issues such as when to accept a ceasefire with Gaza and whether to make a deal with Hamas for the return of living Israelis being held by the group, as well as the remains of two Israeli soldiers.

Dialoguing with the ICC

Regarding the July 2015 controversial decision to engage in an informal dialogue with the ICC, Schondorf said, “I was very much in favor. We had nothing to lose, and our arguments against the ICC’s jurisdiction over Israel were very strong.”

“I was very much in favor. We had nothing to lose, and our arguments against the ICC’s jurisdiction over Israel were very strong.”

Roy Schondorf

Some on the political Right criticized this decision as a waste of resources and advocated boycotting the ICC the same way that Israel has cut off any dialogue with the UNHRC commission’s investigations.

But Schondorf said that all of the senior government legal advisers – including Foreign Ministry Legal Adviser Tal Becker, then-military advocate-general Danny Efrony and his successor, Sharon Afek, as well as IDF International Law Department chief Col. (ret.) Noam Neuman and his successor Col. (ret.) Eran Shamir-Borer – were, like him, in favor of the dialogue.

Schondorf said that most of those who opposed dialogue refused to accept the possibility that the ICC could be different from the UNHRC.

The dialogue was extensive, lasting from 2015 to 2019, and included many meetings with the prosecutor’s staff, with ICC deputy prosecutor James Stewart, and sometimes with Bensouda. Meetings were always very professional and cordial, said Schondorf.

 ON UN Web TV.  (credit: screenshot) ON UN Web TV. (credit: screenshot)

ICC prosecutor takes Palestinians’ side

Everything changed in December 2019 when Bensouda advised the ICC Pre-trial Chamber that she had found there was a basis to move toward a criminal investigation, subject to clarifying central jurisdictional questions by the chamber.

Schondorf said that the decision was communicated by the ICC to Israel’s Embassy at The Hague, which informed the Foreign Ministry, which then informed him and the Justice Ministry.

“The December 2019 decision disappointed us on two fronts. The jurisdiction argument was very weak. The arguments are much stronger that there is no Palestinian state and no ICC jurisdiction than the arguments in favor,” he said.

“The December 2019 decision disappointed us on two fronts. The jurisdiction argument was very weak. The arguments are much stronger that there is no Palestinian state and no ICC jurisdiction than the arguments in favor.”

Roy Schondorf

Pressed about why he thought it was realistic to expect a different result from an international body when close to 140 of the world’s approximate 190 countries recognize a State of Palestine, he responded, “You expect them to do the right thing legally. It is a court of international law. It only has credibility if it acts according to the law.”

His second disappointment was that “even if one ignores the jurisdictional hurdles, this is not the category of cases which the court was established for” in the broadest sense of its mission and purpose.

“The people who founded the ICC,” Schondorf said, “made it to go after perpetrators of mass atrocities like those that the world witnessed in World War II, in Rwanda, or in the former Yugoslavia. The Israeli-Palestinian conflict does not resemble this category. The claims against Israel belong to the political arena and not to a criminal court.”

“The people who founded the ICC made it to go after perpetrators of mass atrocities like those that the world witnessed in World War II, in Rwanda, or in the former Yugoslavia. The Israeli-Palestinian conflict does not resemble this category. The claims against Israel belong to the political arena and not to a criminal court.”

Roy Schondorf

Moreover, he said that the Oslo Accords, which the Palestinians willingly signed on to, determined that the Israeli-Palestinian conflict would be resolved by negotiation, not the fiat of the ICC or any other court.

In his view, the accords are still in force (regardless of statements by the Palestinian Authority, some of which seem to support and some of which seem to negate Oslo), but even more crucial is the fact that in practice, both parties respect the division of authority and jurisdiction provided by the accords. Both in law and in fact, the Palestinians cannot and do not exercise jurisdiction in Jerusalem, in the settlements and over Israelis, he said, adding that the PA cannot delegate to the court jurisdiction that they never had.

In response to Bensouda’s move, Netanyahu and Shaked did not criticize Schondorf or other government lawyers; rather, he stated, “they were just disappointed that the decision was not kept professional, but rather political.”

After the December 2019 decision, Schondorf said, Israel completely severed ties with the ICC, a disconnect that is now running for close to three years.

War crime issue goes to ICC Pre-trial Chamber

Yet, there was still a chance of salvaging the situation if the ICC Pre-trial Chamber rejected Bensouda’s request.

A massive legal, diplomatic and public relations campaign went into high gear, with almost 10 countries taking the side of Israel before the ICC.

 “We don’t need to be afraid to present our position,” Schondorf said. “It’s important to present it to the world. And it warmed my heart when so many nations – including countries like Germany, Australia, the Czech Republic, from Africa, from the Americas – agreed with our position, and were willing to make their views public and even formally submit them to the court.”

Incidentally, Germany is one of the biggest supporters (and funders) of the ICC.

The Magazine had seen indications that Israel had a good chance of winning the support of Judge Peter Kovacs of Hungary, based on his coming from Hungary, his prior career and his judicial record.

The Magazine also had reviewed information suggesting there was a decent chance that French Judge Marc Perrin de Brichambaut might have taken Israel’s side, though there were also contrary indications.

Schondorf added, “I thought the record before the judges was convincing. The legal arguments against jurisdiction were supported by leading international experts and were given legal and political backing by many states.”

The Jewish state was also initially pleased that the ICC did not rush its decision. A longer time to decide meant an admission that the issues were complicated and not black-and-white, and Israel tended to do better when the arbiter was willing to delve deeper into the conflict’s legal complexities.

But by February 5, 2021, the ICC Pre-trial Chamber had ruled for the Palestinians 2-1, with only Kovacs taking the dissenting view that the ICC does not have jurisdiction over Israelis without Israel’s consent. And by March 3, 2021, Bensouda had rushed to open the full criminal probe.

Pressed about why Israel did not appeal, Schondorf responded, “I am not sure you can appeal a proceeding in which you did not participate in the first instance. In any event, Israel is not a party to the Rome Statute [treaty that established the ICC, adopted 1998], and it did not accept the legitimacy of the court deciding whether it has jurisdiction over it.”

“I am not sure you can appeal a proceeding in which you did not participate in the first instance. In any event, Israel is not a party to the Rome Statute [treaty that established the ICC, adopted 1998], and it did not accept the legitimacy of the court deciding whether it has jurisdiction over it.”

Roy Schondorf

He added, “Two judges wrote a decision which was not very convincing. It lacked solid reasoning, was short, and left many questions open, like the significance of the Oslo Accords. They didn’t give the prosecutor the clarity which she wanted. The minority opinion was much more serious and convincing.”

Thus, he is of the view that if eventually the case moves forward, the jurisdictional challenge will be relitigated, and “it is quite difficult to foresee in what way another chamber of the ICC or the Appeals Chamber will rule on the matter.”

Was dialogue a failure or success?

When Schondorf was asked whether the much-debated dialogue with the ICC was a success or failure, after both the prosecutor and the judges ruled for the Palestinians, he took an extended pause.

“We crystallized the problem of jurisdiction. We helped reduce the scope of the probe both regarding the Gaza war and the West Bank. Unfortunately, the prosecutor decided anyway to go with this,” he affirmed.

“I hope we were able to convince the ICC that Israel and the IDF are serious about international law,” and that the Israeli legal system vigorously investigates any allegation of a violation of international law. 

“I also believe that the role the Israeli High Court of Justice plays in ensuring that government activities in the West Bank are consistent with international law is important.”

A new ICC prosecutor, a new hope?

In June 2021, Karim Khan replaced Bensouda, who concluded her nine-year term.

Khan has taken no public action against Israel in his first 14 months, despite Bensouda’s having opened the criminal probe.

“It seems that the Israeli-Palestinian conflict became a less pressing issue for the international community.”

Roy Schondorf

“It seems that the Israeli-Palestinian conflict became a less pressing issue for the international community,” Schondorf said. “Look at the general context,” he stated, listing off several more pressing crises in the Middle East region in 2022.

Moreover, “the ICC under its current leadership appears to focus more on mainstream issues that are in its core mandate. The focus at present seems to be on the Russia-Ukraine war, alongside a number of other pending matters.

“The ICC’s Assembly of State Parties told the court: You can’t do everything. Get focused. Do less. It seems that the new prosecutor took these comments very seriously. He shifted the trajectory of the ship.”

Despite Khan’s leaving Israel alone to date and cautious optimism about his reversing course from the confrontation between the ICC and Israel under Bensouda, Schondorf said, “We did not resume the dialogue with the Office of the Prosecutor. It was hard once it became a criminal probe,” even if Khan did not personally open the probe.

Schondorf refused to discuss whether Israel had worked indirectly with third parties like the US and pivotal EU countries to get Khan to stay out of the Israeli-Palestinian conflict.

He said he had good relations with politicians across the spectrum, from Right to Left.

Even regarding a rare instance where the political class ignored his and Mandelblit’s legal advice, when they passed the controversial Settlements Regulations Law, he said MKs did not disagree with his legal conclusions, they just chose to ignore those legal conclusions because of the political context.

Incidentally, the High Court of Justice agreed with Mandelblit and Schondorf and declared the law unconstitutional.

Highlights and the future

Asked what was the highlight of his time in office, Schondorf said that appearing together with Becker before the International Court of Justice was a special moment.

“When we appeared, it was the first time Israeli officials had appeared there in 60 years. Israel filed a “friend of the court” brief in the case of England versus Mauritius in a dispute relating to the Chagos islands. “It felt like the climax of my career,” since the ICJ is viewed by lawyers as the world’s ultimate legal body, he said.

He was also flattered by a Sri Lankan government report, which he said copied the design and format of an Israeli government report. “If others in the world are copying us, we probably did something right!” he said with a smile.

When asked to give an example of a significant successful result, he referred to the decisions of the Dutch courts in a civil suit brought against Benny Gantz (as former IDF chief of staff) and Amir Eshel (as former commander of the Israel Air Force) with respect to a specific airstrike that took place during the 2014 Gaza operation.

The plaintiff’s lawyers tried to bypass the immunity of the State of Israel by suing its senior officials. This was the first time such an attempt was made with respect to Israeli officials outside of the United States, making it very significant for the Israeli government.

To date, the Dutch courts have upheld the immunity of the senior officials. An appeal is currently pending before the Supreme Court of the Netherlands, and Schondorf hopes the Supreme Court will confirm the judgments of the lower courts.

Schondorf was close-lipped about why senior Justice Ministry official Dr. Gilad Noam was chosen to succeed him over Shamir-Borer and Neuman.

Some had expected Shamir-Borer and Neuman to win the role because of their IDF legal backgrounds, which have been an advantage for many in achieving top legal positions, including Schondorf himself.

On the other hand, Noam had been working in the ministry longer than Neuman, and Shamir-Borer was less directly familiar to ministry officials, as well as the fact that Noam worked the most regularly with ICC officials in terms of capability of handling that issue.

Regarding his own future, Schondorf expects to move into the private sector in international litigation and arbitration. He already had experience in this area in the US law firm sector but now has a whole new level of experience after his 13 years as a top government official.

“I love the practice of law. To deal with international litigation, especially one that involves proceedings in multiple jurisdictions, is one of the most fascinating areas of the practice of law.

“There are many cases I’ve worked on that I cannot discuss, but I think that the bottom line is that we had significant achievements in litigation and arbitration.” 