The looming shadow of the ICC will not go away

In both cases, there is no real desire to engage strategically with the court. We believe this is simplistic understanding of the court.

Presiding Judge Robert Fremr in the courtroom at the ICC (International Criminal Court) in the Hague, the Netherlands, 2018 (photo credit: BAS CZERWINSKI/POOL VIA REUTERS)
Presiding Judge Robert Fremr in the courtroom at the ICC (International Criminal Court) in the Hague, the Netherlands, 2018
In June, we highlighted in a Jerusalem Post op-ed that the International Criminal Court was being used by a number of organizations as a tool to challenge on a fundamental level the legitimacy of the State of Israel. Given this state of affairs, we considered that the possibility of the ongoing preliminary examination in the “situation in the State of Palestine” becoming a formal investigation in alleged violations of international law must be taken seriously, and that a proactive approach needs be taken before the court in order to protect Israeli interests.
Others believe that there is no benefit in engaging proactively with the ICC. On the one hand, some think that informal cooperation at the margins, more on a diplomatic than legal level, coupled with general claims to the legality of Israeli actions, should be sufficient to convince the ICC prosecutor not to proceed further against Israelis. On the other hand, there are those who think there should be a robust rejection of the Court because:
1) It is perceived as a biased anti-Israeli political institution that cannot be trusted, and
2) It is perceived as a weak institution that can be pressured into not acting.
In both cases, there is no real desire to engage strategically with the court. We believe this is simplistic understanding of the court.
The current litigation at the ICC regarding the 2010 Mavi Marmara incident in Gaza illustrates this. In 2010, the IDF intercepted and boarded a group of ships that were aiming to enter territorial waters off the coast of Gaza. The alleged incidents that took place during the operation has been the object of discussion ever since.
In 2013, three state parties to the Rome Statute, whose flag some of the ships were sailing, referred the situation to the ICC. In November 2014, the prosecutor decided not to open an investigation because the alleged incidents were not of sufficient gravity.
Since then, judges twice requested (July 2015 and November 2018) that the prosecutor reconsider her decision. The prosecutor appealed the latest request. For her, the judges had abused their powers in requesting a second reconsideration. 
On September 2, 2019, the Appeals Chamber of the ICC issued its judgment which contains three key findings:
1) It is ultimately for the prosecutor to decide whether to open an investigation or not,
2) This does not mean that the judges do not have an oversight capacity, and
3) In reaching a decision whether to open an investigation or not, the prosecutor must comply with the interpretation of the law given by the judges, but is not bound by factual determinations made by the chamber. The Appeals Chambers gave the prosecutor until December 2, 2019, to decide accordingly.
THERE ARE three main lessons that need to be drawn from this litigation in order to fully understand what is going on at the ICC.
First, the fact that the Mavi Marmara situation is kept alive by the Appeals Chamber must be understood in a broader perspective, especially that of the ongoing examination by the prosecutor in the “Situation of the State of Palestine” opened in 2015, which the prosecutor in December 2018 announced she wanted to complete “as early as possible.” It suggests that despite the optimism expressed by some that US pressure might push the ICC not to pursue the matter in relation to Israel, the shadow of the ICC stills looms steadily and is unlikely to go away anytime soon.
Second, the judgment also shows the ICC is a judicial institution that follows a certain process. There are specific legal criteria which need to be fulfilled and procedural steps that need to be undertaken in order for a decision to open an investigation to be adopted. Each of these phases of the proceedings are as many opportunities to discuss, and therefore shape, the legal and factual context in a way that advances certain interests. In this sense, it is wrong to confuse the political use of the institution by outside organizations and the idea that the institution itself follows a political agenda. As a consequence, it is a strategic mistake to abandon the process to only one side, especially at the very beginning, because it sets the terms of the conversation that will be harder to change as the process moves forward.
During the September 2, 2019, hearing of the ICC Appeals Chambers, the majority of persons present in the courtroom were representing alleged victims of the events, along with the prosecutor, who even though she did not choose to open an investigation, has already made a preliminary assessment that crimes might have been committed. Where were the counterarguments?
Third, the litigation shows that the ICC is not a monolithic institution. The prosecutor and the judges disagree on the law, the facts and ultimately on the opportunity of opening an investigation. The judges, both at the pre-trial and appeal level, disagree on the way of evaluating the facts and on the exact powers of the chambers and the Prosecutor. These disagreements should not be seen as dysfunctions of the institutions. On the contrary, they are the daily bread of international criminal proceedings. More importantly, this diversity provides an opportunity for future litigation that cannot and should not be overlooked.
At the end of the day, ignoring the ICC is to continue to ignore the zeitgeist which is the attempt to delegitimize Israel through the use of international organizations. The Gaza flotilla litigation and the ongoing preliminary examination in the “Situation of the State of Palestine” are proof of that. Ignoring the ICC is to let others control the narrative. Ignoring the ICC because it would be a weak and politically-biased institution, which would be prevented from intervening in Israel by US threats, is confusing the tales we tell ourselves as emotional reassurance with an effective counter-narrative.
This is ultimately not the way to go if Israel truly wishes to change the conversation on the international plain. The ICC is part of the painting, just as the UN is, and they cannot just be wished away. A careful, strategic, holistic and legal engagement with the court is the only way forward.
Emmanuel Altit is lead counsel at the ICC, where Jennifer Naouri is counsel, and where Dr. Dov Jacobs is an international criminal law professor and trial lawyer.