Nitsana Darshan-Leitner, founder and president of Shurat HaDin, a civil rights organization based in Israel that fights terrorism and threats to the Jewish state through the courts, spoke to an April 12 Middle East Forum webinar (video) about efforts by the Palestinian Authority (PA) to threaten Israel via the International Criminal Court (ICC).
In 2015, ICC chief prosecutor Fatou Bensouda initiated a preliminary examination of two allegations of purported Israeli war crimes raised by the Palestinian Authority (PA): (1) that Israel Defense Forces (IDF) soldiers used excessive force against Palestinians, and (2) that Israeli settlements in the West Bank violate international law. In March 2021, a formal investigation was opened.
However, Darshan-Leitner insisted that the ICC does not have jurisdiction to investigate Israel for two reasons. First, the ICC charter states that cases can be brought before the ICC only if either the plaintiff or the defendant is an ICC state member. Israel, which did not accede to the Rome Statute that established the court, has never been an ICC state member, and the PA is not a state. The latter nevertheless came to be recognized as an ICC state member by way of a highly politicized process that began in 2012, when the heavily anti-Israel UN General Assembly granted the PA status as a non-member UN observer state.
Darshan-Leitner insisted that the ICC does not have jurisdiction to investigate Israel.
Second, the ICC charter enshrines the principle that the court should only investigate alleged war criminals when there is no other judicial system in place within that country to bring them to justice. The ICC selects jurisdiction to "bridge gaps," said Darshan-Leitner, not to supersede the judicial process in any country. Israel has a credible judicial system for investigating and punishing wrongdoing. The IDF's military prosecutor adheres to a "strict procedure ... to investigate and indict" any soldier who use excessive force, and if that fails Israel's Supreme Court can force the prosecutor to "bring the soldier to justice."
In addition to challenging the ICC investigation on jurisdictional grounds, Shurat HaDin has been actively been involved in filing complaints with the ICC about Palestinians "who commit crimes against humanity on a daily basis against the Israelis," whether through direct violence or through incitement to violence, since the ICC's establishment in 2002.
Although the PA is not a state and therefore not subject to ICC jurisdiction, Shurat HaDin contends that PA leaders can be investigated for instigating the murder of Israeli citizens because most have Jordanian citizenship and Jordan is a state member of the ICC. The ICC needs to investigate the "suicide bombing[s], drive-by shootings, ambushes, [throwing of] Molotov cocktails, shooting [of] missiles towards [the] Israeli population ... [as] crimes against humanity ... done from 2002 [and on]."
The PA asked the ICC to conduct an investigation of Israeli actions beginning in 2014, the year Israel launched Operation Protective Edge in Gaza, in response to the kidnap and murder of three Israeli teens in the West Bank by Hamas, and with the aim of rooting out the terror tunnels dug by Hamas to enable infiltration into the Jewish state and the murder of Israeli citizens. During the war, over 4,500 rockets fired were indiscriminately fired into Israel by Hamas.
The PA's second allegation accusing Israel of violating international law with the building of settlements in Judea and Samaria (aka the West Bank) is thornier. The PA claims Israel has violated Section 49 of the Geneva Convention, which bars countries from transferring population into occupied territories. But Israel insists the West Bank is not occupied (and thus does not purport to investigate or punish Israelis who have come to live there).
"Nobody actually owns Judea and Samaria."
Darshan-Leitner said Israel's objection is justified, as "nobody actually owns Judea and Samaria." In World War I, the British took over the land from the Ottoman Empire, but only with a mandate to administer the territories. When the mandate ended 25 years later, the British departed, and the Arabs and Jews fought over the land in Israel's Independence War, which ended in 1948 with a ceasefire but no resolved border. Jordan moved to annex the land it occupied to the west of the Jordan, ergo "the West Bank," but this was unrecognized by other countries, save for Pakistan and Great Britain, which did so for political reasons. In 1967, after Israel seized Judea and Samaria from Jordan, still no one "owned it." The land is considered "disputed," but not occupied.
The ICC does not accept Israel's position, and Darshan-Leitner expects that the ICC will judge the entire West Bank and East Jerusalem as being occupied.
Shurat HaDin has chosen a roundabout strategy of contesting the ICC's treatment of the matter by working to bring a "working complaint" against Turkey's occupation of Northern Cyprus, which everyone agrees is occupied, and in which Ankara has incentivized Turks to settle – an undeniable violation of Section 49. Darshan-Leitner expects the ICC to avoid acting against Turkey's occupation because "Turkey is too dear to NATO, too dear to Europe, [and] nobody wants to deal with [Turkish President Recep Tayyip] Erdoğan." The ICC will likely determine that this dispute is "not under its jurisdiction" and defer to the parties to resolve the Turkish-Northern Cyprus dispute. This, in turn, will strengthen objections to the ICC ruling any differently with respect to Israeli actions in the disputed West Bank.
"We're going to flood the court with evidence of the victims from the Israeli side."
In order to appear "balanced," Bensouda paired her decision to open an investigation of Israel with a decision to investigate Hamas. However, the ICC will not be investigating the PA, the instigator of this entire process. In hopes of changing that, Shurat HaDin will continue to petition the court for indictments relating to the PA's "pay-to-slay" policy, as there are legal precedents for considering "incitement to terrorism" a "crime against humanity" that encourages genocide. "We're going to flood the court with evidence of the victims from the Israeli side ... [and] show the court who are the real war criminals."
At the end of the day, Darshan-Leitner expects that the ICC investigation will lead its prosecutor to issue indictments and arrest warrants against Israeli officials and military officers. They "will not be safe traveling around the world," because the 128 member states of the ICC will be obligated to honor the warrants. "If the court continues with this investigation, it will be a game changer."
This is what fuels Darshan-Leitner's determination to fight the investigation. "We have to fight it because we are a sovereign state and we want to live safely in our borders ... and no international tribunal [will ever] determine the rights of the Jewish people to its own country."
Marilyn Stern is communications coordinator at the Middle East Forum.