The Clear and Imminent Legal Danger Posed to Israel by the ICC

• The International Criminal Court (ICC) has proven itself to be a hostile and political body that has, without any legal grounds, already invented a non-existent “State of Palestine” and, claiming the jurisdiction to do so, has attempted to set its borders. While the internationally-recognized Oslo Accords only conferred upon the Palestinian Authority (PA) a limited framework intended to administer the areas under its control, the Accords specifically and repeatedly stipulated that the PA would be devoid of any criminal jurisdiction regarding Israelis.
• According to ICC Prosecutor Khan, the Oslo Accords are irrelevant for the purpose of the proceedings in the ICC.
• The PLO’s 2012 request for upgraded status in the UN and, after receiving such an upgrade, its subsequent accession to the ICC Statute in 2014, are fundamental breaches of the Oslo Accords. However, Israel chose to continue to implement the Accords, transferring to the PA over 107 billion shekels since 2010. The funds Israel transfers to the PA comprise 65 percent of its total income.
• Should the ICC accede to the Prosecutor’s request, Israel will have no choice but to abandon its decades of naïve blindness to the Palestinian breaches of the Oslo Accords. First and foremost, Israel must announce that an ICC decision to issue arrest warrants will result, inter alia, in the immediate suspension of all transfers of funds to the PA, a suspension of all the privileges granted to the PLO/PA and its leadership pursuant to the Oslo Accords, and will give rise to the necessity to act to dismantle and replace the PA.

The request for a decision of the International Criminal Court (ICC) to issue arrest warrants against Israeli Prime Minister Netanyahu and Defense Minister Galant is pending, and the politically-driven ICC prosecutor is pressing the court to come to a decision. The anticipation of the decision to issue the arrest warrants must serve as a wake-up call necessitating the urgent need for a change of policy towards the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA).

The PA was created as part of the Oslo Accords. Morphing from a vehicle of limited Palestinian self-governance, as envisaged by the Accords, the PLO has turned the PA, in stark violation of the Accords, not only into a vehicle for promoting Palestinian terror against Israel but also into a vehicle for delegitimizing Israel in the international arena.

While Israel witnessed the gradual but consistent change, it was not accompanied by critical changes in policy.

When the PLO/PA adopted a law to incentivize, promote, and reward Palestinian terror¹ – a clear breach not only of the Oso Accords but also of international law banning terror financing ­– Israel chose to turn a blind eye. When the PLO/PA sent “terror-mom” Latifa Abu Hamed,² the mother of six terrorist murderers responsible for the murder of more than ten Israelis, to launch its bid for statehood in the United Nations, which constituted another clear breach of the Oslo Accords, Israel again turned a blind eye. When the PA used its UN status upgrade and requested that the non-existent “State of Palestine” become party to the ICC Statute, it appears that Israel again turned a blind eye.

Now, Israel’s policy of naive blindness is exploding in its face.

The so-called “State of Palestine” acceded to the ICC Statute on June 13, 2014. The date was not incidental. On the eve of June 12, 2014, Palestinian terrorists kidnapped and murdered three Israeli teens. The kidnapping and murder gave rise to a widespread Israeli military operation in Judea in Samaria, which in turn developed into a war with Gaza, code-named “Operation Protective Edge.” The accession date chosen by the Palestinians was designed to perpetuate the lie that Israel’s efforts to locate the kidnapped teens were entirely arbitrary and lacking basis.

However, since a “State of Palestine” did not exist, the ICC’s first obstacle was defining and delineating the “territory” of the non-existent state. To surmount this hurdle, in 2020, then-ICC prosecutor Fatou Ben Souda asked³ the Pre-Trial Chamber of the ICC to rule on the court’s “territorial jurisdiction.” In other words, the Prosecutor asked the court to decide on sovereignty and the geographical borders of the non-existent state.

While the ICC is a criminal court and lacks the fundamental jurisdiction to set the borders, de novo, of both existing and non-existing states, the ICC nevertheless ruled⁴ that the “territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.” In doing so, the ICC invented the fiction that the 1949 Armistice lines agreed between Israel and Jordan and Israel and Egypt following Israel’s War of Independence were to be seen as the “borders” of the “State of Palestine.” While this decision flouted the clear language of the Armistice agreements, which expressly stipulated that the lines drawn would not be considered as “borders” and ignored the well-established principle of international law – Uti Possidetis Juris⁵ – this did not bother the court.

As part of that initial process, the submissions of many countries and amici curiae (friends of the court) raised an additional argument that should have prevented the court from exercising jurisdiction over the Israeli-Palestinian conflict.

The ICC functions based on delegated jurisdiction. Thus, when a state joins the ICC, it transfers to the court part of its criminal jurisdiction over certain offenses.

As noted above, the PA, which then morphed into the “State of Palestine,” was created by the Oslo Accords. Multiple provisions in the Oslo Accords specifically provided that the PA would have no criminal jurisdiction over Israelis. In their submissions, both the countries and the amici curiae noted that since the body that joined the ICC was devoid of any criminal jurisdiction regarding Israelis, it followed it was estopped from transferring to the ICC jurisdiction that it did not possess.

At the initial stage, the court refrained from ruling on that issue, claiming that “the arguments regarding the Oslo Agreements in the context of the present proceedings are not pertinent to the resolution of the issue under consideration, namely the scope of the Court’s territorial jurisdiction in Palestine.”⁶

The court did, however, add, “When the Prosecutor submits an application for the issuance of a warrant of arrest or summons to appear under article 58 of the Statute, or if a State or a suspect submits a challenge under article 19(2) of the Statute, the Chamber will be in a position to examine further questions of jurisdiction which may arise at that point in time.”⁷

Following the court’s decision, the Prosecutor quickly announced⁸ the opening of a full investigation into the situation in “Palestine.”

While this investigation was ongoing, on October 7, 2023, the genocidal Palestinian terror organization Hamas, together with other terror groups in Gaza, carried out the worst massacre against the Jewish people since the Holocaust. Israel responded by launching a defensive war against the terrorists. As the fighting continued, the current ICC Prosecutor, Karim Khan, turned to the court, asking that it issue arrest warrants against Prime Minister Netanyahu and Defense Minister Galant.⁹ To feign even-handedness, Khan also asked the court to issue arrest warrants against the leaders of the Hamas terrorist organization: Yahya Sinwar, the head of Hamas in the Gaza Strip, Mohammed Deif, the Commander-in-Chief of the military wing of Hamas, and Ismail Haniyeh, Head of Hamas Political Bureau. Deif and Haniyeh have since been killed.

In accordance with the initial decision and after Kahn filed the request to issue arrest warrants, the United Kingdom sought to intervene and asked that the court again consider the implications of the limitations placed on the PA by the Oslo Accords.

The UK’s request, which it subsequently abandoned,¹⁰ started a new proceeding, which the court opened for new submissions.¹¹

Responding to the submissions,¹² Prosecutor Khan rejected entirely the notion that the limited jurisdiction granted to the PA under the Oslo Accords limited the court’s jurisdiction in any way. Ignoring the fact that the “State of Palestine” does not truly exist and has, in reality, never existed, Khan wrote, “the Oslo Accords are irrelevant to the interpretation and application of article 12 of the Statute.”¹³

Disregarding the Oslo limitations, Khan added, “Plenary jurisdictional competence – as an aspect of sovereignty – rested in the Palestinian people as a group entitled by international law to exercise the right of self-determination.”¹⁴ In other words, in Khan’s opinion, the “Palestinian people” – a group he never defines – held inherent criminal jurisdiction that it could transfer to the court, irrespective of the fact that a “State of Palestine” does not exist.

In practice, Khan baselessly argues that any group of people claiming the right to “self-determination” holds inherent criminal jurisdiction that it can transfer to the court, whether or not people have a state. Khan never explained what happened to that inherent right while Judea and Samaria were under Jordanian control (1948-1967) or while the Gaza Strip was under Egyptian control (1948-1967) when no one recognized the existence of a “Palestinian people.”

As part of the new process, some amici curiae also raised another potential impediment to the ICC jurisdiction – the Complementarity argument.

Based on Article 17 of the Court’s Statute,¹⁵ a case would be inadmissible before the ICC if “The case is being investigated or prosecuted by a State which has jurisdiction over it unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”

For years, Israel has argued that it has multiple independent investigative procedures and authority and an independent judiciary. These bodies, Israel has claimed, are not only willing and able to investigate alleged breaches of the law, but when sufficient evidence has been gathered to indicate the commission of a crime, indictments have also been filed.

Rejecting these arguments, Khan argued, based on a previous decision of the court, that the mere existence of these potential procedures is irrelevant and “that ‘national investigations that are not designed to result in criminal prosecutions’ or ‘national proceedings designed to result in non-judicial and administrative measures rather than criminal prosecutions’ do not meet the admissibility requirements.”

Thus, the Prosecutor, without any legal grounds, invented a non-existent sovereign state of “Palestine,” determined its borders (without jurisdiction to do so), and decided that the limitations on the criminal jurisdiction of the PA as agreed upon between the PLO and Israel in the Oslo Accords, do not and cannot impede the jurisdiction of the court. Given such ungrounded actions and determinations by the Prosecutor, one may wonder if there is any reasonable chance that the court’s judges will now be inclined to decide that the court has no jurisdiction.

A decision of the court to grant the request of the politically motivated prosecutor and issue arrest warrants would cause untold damage to Israel.

Who Is Funding the Palestinian Legal Assault on Israel?

As part of the Oslo Accords, declared irrelevant by the ICC Prosecutor, Israel agreed to waive a whole slew of taxes in favor of the PA. As part of that waiver, Israel has provided the PA, from 2010 through August 2023, with funds in excess of 107 billion shekels. According to PA financial reports, the money received from Israel accounts for over 65 percent of its entire budget. In other words, out of every 100 shekels the PLO/PA spent breaching the Oslo Accords, Israel actively funded and contributed 65 shekels.

Thus, of every 100 shekels the PA has spent to receive upgraded status in the UN, and out of every 100 shekels the PA has spent hounding and hunting Israel in the ICC, Israel has provided 65 shekels.

Regrettably, while the PLO/PA/the State of Palestine have driven roughshod and practically voided the relevance of the Oslo Accords, to this day, Israel continues to transfer to the PA hundreds of millions of shekels a month.

Urgent Need for a New Policy

Since it is unreasonable to believe that Israel knowingly seeks to contribute funds for its own delegitimization and to enable the arrest and prosecution of its Prime Minister and Defense Minister, Israel should publicly announce, that should such arrest warrants be issued by the court, the decision by the ICC, in and of itself, voids the Oslo Accords, and that such a decision will have immediate consequences.

Such consequences should include, at the very least, inter alia, the immediate termination of the transfer of any funds to the PA and the suspension of all privileges enjoyed by the PLO/PA and its leadership pursuant to the Oslo Accords. Furthermore, Israel must actively develop a plan to dismantle and replace the PA entirely.

These sanctions would remain in place pending the withdrawal by the PA/the non-existent “State of Palestine” from the ICC.

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