There has been talk recently about the possibility of Israel joining the International Criminal Court in The Hague. Unfortunately taking such a step could harm Israel more than benefit it. While the Statute of the International Criminal Court, approved in Rome in July 1998, was formulated by a plenipotentiary international conference as an international convention, it nonetheless contains some problematic political aspects. For example, in the list of the most serious violations of the laws of armed conflict which are a basis for prosecuting a head of state or senior government or military official Egypt and Syria inserted in this list the “transfer of parts of its own civilian population”, the specific purpose being to include Israel’s settlements policies. The legal basis for this “crime”
is stems from part of article 49 of the Fourth Geneva Convention but which has been emended and distorted in order to custom tailor it to the case of Israel.
We on the Israeli legal team that participated in the Rome Conference saw these actions as politicization par excellence of the Statute of the Court over which we had labored so intensively and which to this day still contains many provisions which Israeli experts helped draft. In light of the events of the Holocaust, as early as the late 1950’s Israel was one of the first countries to take part in developing the idea of an international criminal court intended to try leaders for the most heinous international crimes and we took an active part in the process of drafting the court’s Statute up to its adoption in 1998. However, as soon as the formulation of the Statute became politicized, Israel’s participation became a kind of trap. Since Israel is still in a state of armed conflict with some of its neighbors and is in possession of territories whose fate has yet to be determined, there is a danger that at any given time, there will be elements who would try to accuse an Israel leader or military commander of serious violations of international law or war crimes, even in the very act of encouraging or justifying settlement activity. In effect we regarded the politicization of the court as a kind of stab in the back.
In addition to this, there are several other problematic points in the Statute. Were Israel to become party to the Statute and to present its own candidate to serve as a judge, the chances that he or she could be elected would be infinitesimal. The system of elections used within the United Nations system, including by the International Criminal Court in effect guarantees that no representative of Israel could even tender his or her candidacy.
Another problem is that there are crimes for which no approved definition has yet been agreed upon, such as the crime of aggression. We reached the conclusion that despite the fact that the establishment of an international criminal court was intended to punish deeds such as those that subjected us to genocide, we are afraid that in the extremely politicized international community, as evidenced in the United Nations International Human Rights Council there are those who will try to turn the international criminal court into a weapon against us. We see the attempts to do this even now, and a clear example of this is the Goldstone Report commissioned by the Human Rights Council, which accuses us of war crimes with all the ramifications that could arise from that.
The State of Israel is not alone in its decision not to join the court, at least for the present. This court has barely mustered the support necessary to be established. Important countries such as the United States, China, and Russia have also not yet joined.
Presently the court is busy with claims against Uganda and a number of African leaders, but we know that the Court’s General Prosecutor is repeatedly being petitioned by the Palestinian leadership to initiate prosecutions against Israelis. The Prosecutor has the authority to initiate an investigation on his own initiative. Similarly, by decision of the UN Security Council the court recently initiated criminal proceedings against the President of Sudan, even though Sudan is not a party to the charter.
While it is highly unlikely that the Security Council would call for criminal action by the court against Israel’s leaders, even without the court’s having jurisdiction over Israel, Israel has nevertheless much to lose by joining the International Criminal Court at the present juncture and in the present international atmosphere, since it would open itself much more directly and openly to claims against it.
Adv. Alan Baker served as legal adviser to the Ministry of Foreign Affairs and as Israeli Ambassador to Canada, and was a member of the Israeli delegation to the Rome deliberations on formulating the Statute of the International Criminal Court. At present he is a partner in the law firm of Moshe, Bloomfield, Kobo, Baker, and Associates.