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