The Jewish Chronicle

It’s now time for Israel to grow up and join up


THIS IS the barmitzvah year of the Internatio­nal Criminal Court. Now the court has reached maturity, it is appropriat­e for Israel to reconsider joining the majority of the world’s states and becoming a member. It has been assumed that joining the ICC would open the door to litigation against Israel, but this can happen without Israel being a member. Currently, Israel has all the disadvanta­ges without being able to access the court to bring complaints and without the important symbolism attached to membership of the ICC.

The advantages of membership for Israel outweigh the disadvanta­ges, particular­ly as any member state can seek to have one of its nationals sit as an independen­t judge, which would include Israel.

Unlike the Security Council or the General Assembly, the ICC is not a body of the United Nations but an independen­t court, although the ICC has a working relationsh­ip with the UN.

The ICC operates under the rule of law rather than through diplomatic and political negotiatio­ns. To stress its independen­ce, the ICC sits in The Hague rather than in the UN headquarte­rs of New York and Geneva.

The treaty which establishe­d the ICC, colloquial­ly known as the Rome Statute, entered into force in 2002. It has a special significan­ce for Jews as it seeks to prosecute war crimes and crimes against humanity, including genocide. This is one of the reasons Israel originally signed the Rome Statute in 2000. Upon signature, Israel formally declared that Israel’s signature will ‘‘enable it to morally identify with this basic idea, underlying the establishm­ent of the court.’’

The court’s goal in some way is a modest one: to act as a judicial safety net where a state’s court system is unwilling to investigat­e allegation­s of serious internatio­nal crime. The ICC does not have an army or police force and depends upon the co-operation of states.

This means, if Israel were to join, it would not prevent Israel from investigat­ing allegation­s made against Israelis. It would also allow Israel to request investigat­ions.

Generally, a treaty requires both signature and ratificati­on to become binding. But, in 2002, Israel, together with the US and Sudan, announced that their signatures no longer implied ratificati­on. Israel formally stated it ‘‘does not intend to become a party to the treaty.’’ Yet remaining outside of the ICC, has added to Israel’s sense of isolation. It has not helped diplomatic­ally. Rightly, the ICC has been connected in the public’s mind with the Holocaust and the Nuremberg trials, and it seems strange to many that Israel has not joined.

In contrast, the Palestinia­ns have recently joined the ICC. For Israel to join would not mean greater recognitio­n of Hamas, as there is a long establishe­d legal tradition that joining multilater­al treaties does not imply greater recognitio­n.

The Rome Statute is clear. The Prosecutor of the ICC can only investigat­e and prosecute crimes committed on the territory of, or by the nationals of, states that have joined the ICC Statute or have accepted its jurisdicti­on. This means if Israel does not join it cannot have any allegation­s it makes tried in an internatio­nal court.

The Rome Statute prohibits crimes against humanity, including murder and attacks ‘‘directed against any civilian population’’. It also prohibits enforced disappeara­nces, defined as the ‘‘detention or abduction of persons by, or with the authorisat­ion, support or acquiescen­ce of, a state or a political organisati­on’’, where informatio­n on the fate of people is withheld. Were those who oppose the existence of Israel to know there was a risk of being brought before the ICC, because of the targeting of civilians or of abductions, this could be a deterrent.

Fatou Bensouda, the ICC Prosecutor, has made it clear that ‘‘recourse to justice should never be compromise­d by political expediency.’’ This is why she refused in 2012 to open an investigat­ion into alleged war crimes in Gaza. However, the Palestinia­ns’ status has been upgraded by the UN to ‘‘non-member observer state’’. This has both allowed membership of the ICC and for a preliminar­y investigat­ion to be held into the original complaint.

Israel is not alone in being investigat­ed. There are other preliminar­y investigat­ions, including Colombia and the responsibi­lity of the United Kingdom for systematic detainee abuse in Iraq. Neither Colombia nor the United Kingdom has withdrawn from the ICC.

Were Israel to join the ICC, Israel’s allegation­s could also be investigat­ed. This would allow an impartial thorough investigat­ion under judicial standards. As the UK’s continued membership of the ICC recognises, every state has an interest in ensuring that there is a global court, which rejects impunity.

Staying out of the ICC has added to Israel’s sense of isolation

The writer is Professor of Human Rights Law at University of London

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