During debates about the reasonableness standard bill in the Constitution, Law, and Justice Committee, opposition members have repeatedly warned that the passing of the legislation would lead to IDF soldiers being brought to stand trial before international legal forums.
However, Prof. Eugene Kontorovich, director of International law at the Jerusalem-based libertarian Kohelet Policy Forum, argued in a new policy paper co-authored by Adv. Avraham Russel Shalev that the reasonableness bill will not change the legal situation with bodies like the International Criminal Court.
The chief argument made by opposition members center on the principle of complementarity, the idea that international courts are supplemental to local courts, and that they only have jurisdiction when the local judiciaries are unable to prosecute war crimes and other criminal action because they are unable or unwilling, and are not independent or lack the authority or power.
Opposition members contend that if the reasonableness bill were to pass, the independence and power of the Israeli courts would be altered in a way that the ICC would feel that it had the right to bring itself to bear on IDF soldiers, officers, and officials accused of crimes.
Kontorovich told The Jerusalem Post that the ICC has no jurisdiction regardless of the status of Israel’s local courts. Across Israel’s political factions for the last 20 years, the view has been that the court has no right to judge Israelis. Israel has not ratified the Rome Statute to become a party to the ICC.
“The issue is not whether the ICC should prosecute us if we’re naughty or prosecute us if we’re nice,” said Kontorovich. “Under Israel’s view, the ICC is an illegitimate international tribunal. It is not a lawfully constituted court. It is just something that has no connection with Israel. Israel has not accepted its jurisdiction, and it has absolutely no authority to exercise that jurisdiction over Israel, especially in the way that it is trying to do about issues involving Gaza and the West Bank, which are not even a country capable of joining the ICC.”
IDF soldiers won't be arrested abroad
IDF soldiers wouldn’t be arrested in other states that were a party to the convention and brought to The Hague, said Kontorovich, as jurisdiction was about authority over where the alleged crime occurred.
Kontorovich said the argument by the opposition lent legitimacy to the ICC, and while he didn’t want to exaggerate the danger, undermined Israel’s ability to push back.
Kontorovich also noted that even if the court had jurisdiction, ostensibly revolutionary changes to Israel’s legal system would not actually change the ICC’s conduct toward Israel.
“They have a clearly anti-Israel agenda, which means they’re probably going to act against us anyway, and they should not be treated as an impartial act,” said Kontorovich. “The ICC has said that it is going to exercise jurisdiction and has advanced an investigation through several important phases until it had, two years ago, opened a full investigation, completely undeterred by the lack of judicial reform. If Israel’s current judicial system in all of its details is truly some kind of Iron Dome against international lawfare, why has it been raining ICC actions against us? The ICC has taken numerous steps opposed by the Israeli government with no regard to the functioning of our legal system.”
"The ICC does not look into the details of how the legal system functions – which is not surprising because it has members from all over the world.”
Prof. Eugene Kontorovich
Bias aside, Kontorovich that the perception of the ICC as global police rooting out wrongdoing is incorrect – it has only convicted 10 people in its 20-year history. Independence of the courts was not actually enough of a factor to motivate the ICC.
“It is not about any details of the legal system,” explained Kontorovich. “It is not even about judicial independence. There are countries that completely lack judicial independence where the ICC has found complementarity satisfied. For example: The African country of Guinea, where, according to the US State Department, there is no judicial independence and massive corruption. The own internal investigations of crimes in Guinea were thought to be adequate by the ICC. The ICC does not look into the details of how the legal system functions – which is not surprising because it has members from all over the world.”
Kontorovich continued to argue that independence of the courts was not impacted by the reasonableness bill in the first place.
“Reasonableness has nothing to do with criminal prosecutions. It’s principally about appointments of officials and administrative action. It’s not about investigating people for crimes. You can’t prosecute someone for not being reasonable,” said Kontorovich.
The ICC’s investigations, the Kohelet fellow said, also had nothing to do with crimes, but were lawfare initiatives of the Palestinian Authority to have settlements ruled illegal.
In the Law Committee sessions, opposition members have argued that the reasonableness standard also created a requirement for officials to be reasonable in their decision-making and explain their reasoning. IDF soldiers, they said, relied on this guardrail to ensure that the orders and guidelines given to them were in fact reasonable, and would not lead them to commit crimes. Kontorovich rejected this idea, saying Israel’s laws and regulations on military conduct already guided such actions.
“Reasonableness is something that only kicks in after all actual legal requirements have been exhausted. The argument of reasonableness is, ‘you have complied with all of the laws, but still, we think it was bad what you did, even though it’s completely legal.’ You don’t need reasonableness if something actually violates a law,” said Kontorovich.
“Israel has a complicated system of military justice, which criminalizes things that are illegal under the Geneva Convention and basically requires soldiers to comply with the law of war. It’s hard to imagine something which complies with the law of war, but is unreasonable and is so obviously unreasonable that you would rather trust the judgment of the courts over commanders, even though it complies with international law.”
Kontorovich said the Israeli consensus was that the ICC isn’t legitimate, and shouldn’t be honored as an institution of international justice based on how one felt about domestic policy like judicial reform.
Kohelet has advocated for judicial reform for over a decade and advised the current government on the proposed reform legislation.