This is the third installment in a five-part series written in response to Israeli Prime Minister Benjamin Netanyahu's assertion that three International Criminal Court provisions could preclude Israeli nationals from being investigated or prosecuted by the ICC. This five-article series, "Israel Attacks the International Criminal Court but Its Arguments Fall Flat," presents the facts and the law regarding each of those provisions. It shows that Israelis, including Israeli political and military leaders who allegedly committed war crimes in occupied Palestinian territories, have little reason to have confidence that a fair prosecutor will agree that any of those ICC provisions apply to exclude ICC investigation and prosecution of Israeli nationals. The first installment in this series was: "Pounding the Table, Israeli Officials Malign International Criminal Court" The second installment was: "The Question of Palestinian Statehood and the ICC's Jurisdiction."
In response to the announcement that the prosecutor of the International Criminal Court (ICC) was opening a preliminary investigation of the situation in Palestine, the Jerusalem Post reported that Israeli Prime Minister Benjamin Netanyahu said:
Israel "upholds the highest standards of international law," and its actions are "subject to the constant and careful review of Israel's world-renowned and utterly independent legal system."
A central feature of the Rome Statute - the ICC founding treaty that includes the rules under which the ICC operates - is the requirement that the ICC defer to investigations and prosecutions genuinely performed by a state, a principle called "complementarity." Under this admissibility principle, the ICC will free Israeli nationals from any ICC investigation while the Israeli legal system investigates and prosecutes. However, also under this principle, there is an important exception: If the ICC prosecutor's preliminary examination concludes that the Israeli legal system is sufficiently flawed and the cases are of sufficient gravity, then the Rome Statute allows the prosecutor, with authorization from the three judges of the pre-trial chamber, to refuse to defer to the Israeli legal system or to end any deferral given, and for the ICC to conduct its own investigation and prosecution at The Hague.
Specifically, the Rome Statute provides that a case may not be admitted to the ICC if the case is being or has been investigated or prosecuted by a state that has jurisdiction over it, "unless the state is unwilling or unable to genuinely carry out the investigation or prosecution."
One of the conditions under which the ICC determines whether the state is "unwilling" is whether "the proceedings by the state are for the purpose of shielding the person from criminal responsibility for crimes within the jurisdiction" of the ICC. Another is whether "there has been an unjustified delay in the proceedings." A third condition is whether "the proceedings were not or are not being conducted independently or impartially."
During its preliminary examination, and before moving to the investigation phase, the prosecutor will assess whether the Israeli legal system meets these criteria with respect to cases that may be brought by Palestinian victims. Thus, if Netanyahu is correct, and if the cases brought to the ICC's attention have been or are being investigated and prosecuted under an independent and impartial Israeli legal system, and nothing about the proceedings before the Israeli legal system prevents the responsible military and political leaders from genuinely being brought to justice without unjustifiable delay, the Rome Statute provides that the prosecutor shall defer to the Israeli legal system and bring the ICC proceedings to a stop.
Thus, under the Rome Statute, the Israeli government has the power to ensure that the ICC never considers a case against any of its citizens, simply by making sure that its legal system actually conforms to the terms stated by Netanyahu.
Another way Israel can avoid ICC review under the Rome Statute is to avoid making massive assaults, avoid targeting official peacekeeping and humanitarian facilities and workers, and avoid committing crimes for which the ICC has jurisdiction as part of a plan or policy.
For example, based on such criteria, the ICC prosecutor found that the attack on the ship Mavi Marmara in 2010 - in which Israeli forces killed 10 civilians and wounded 50 to 55 - was "not of sufficient gravity to justify further action by the court."
However, in their review of the prosecutor's decision, a majority of the judges of the pre-trial chamber of the ICC overruled the prosecutor. The judges found that each of the following were grounds for the pre-trial chamber to find sufficient gravity:
- the number of casualties
- the nature of the war crimes allegedly committed
- the abuse of the Mavi Marmara passengers that could have amounted to the war crimes of torture or inhuman treatment
- the possible use of live ammunition from Israeli speedboats and helicopters before any Israeli soldiers boarded the ship (indicative of a prior intent and plan to attack and kill unarmed civilians)
- the cruel and abusive treatment of the detained passengers while they were in Israel (also suggesting official sanctioning of such treatment when the passengers were on board the ship)
- the shooting of certain passengers multiple times in the face
- the concealing of evidence by confiscating all recordings of the events
- the impact the attack had on the families of the victims
- the impact the attack had among the public
- the strong message the attack sent to the people of Gaza
Accordingly, the pre-trial chamber requested that the prosecutor reconsider.
The prosecutor appealed the pre-trial chamber's decision, but that appeal was dismissed by the appeals chamber on November 6, 2015. Therefore, the prosecutor is expected to take up the case for further preliminary examination, possibly leading to investigation and prosecution of Israelis involved in - or responsible for - the assault on the flotilla.
The Israeli government policy to build settlements in the occupied West Bank, by itself, is likely to be considered of sufficient gravity. So is the Israeli government's massive summer 2014 assault on Gaza, in which its forces killed and wounded thousands of Palestinians, destroyed thousands of homes and destroyed schools, farms and hospitals in Gaza. Taking into account the ultimate decision finding sufficient gravity to proceed in the Mavi Marmara case, Israeli political and military leaders are unlikely to have any confidence at all that consideration of gravity will halt further action by the court regarding the situation in Palestine and crimes that may have been committed there.
Settlements in Occupied Territory
While the prosecutor will be considering whether the Israeli legal system is willing or unwilling to genuinely investigate and prosecute its citizens for actions during the 2014 assault on Gaza, the easiest decision for her may regard the Jewish-only settlements in the West Bank: The Israeli High Court of Justice firmly closed the door on consideration of the settlements issue.
The Rome Statute considers "the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" to be a war crime. The Israeli High Court has decided not to declare the Jewish-only settlements in the occupied territory illegal.
Illustrating the position of the Israeli legal system, in Bargil v. Government of Israel, the Israeli Supreme Court sitting as the High Court of Justice, decided on August 25, 1993, to make no decision regarding the legality of settlements, because it said the settlements were a political question and decision should be left to other branches of government. Thus, the Israeli legal system has firmly established itself as unwilling or unable to investigate and prosecute those political and military leaders responsible for the settlements, nor the settlers engaging in settlement activity, nor the military personnel protecting the settlers and the settlements, nor the owners and officers of private companies facilitating the settlements. Unless the Israeli Supreme Court reverses itself, the war crime of transferring parts of its own civilian population into the occupied territory can only be investigated and prosecuted if the ICC takes up the case, or, failing that, if a special tribunal set up by the UN General Assembly takes up the case.
Evidence Shows That the Israeli Legal System Is Flawed
Descriptions offered by authoritative governmental and nongovernmental sources indicate that the Israeli civil and criminal legal systems are far removed from the glowing description given by Netanyahu. The prosecutor and the pre-trial chamber may find such authoritative evidence to be sufficiently persuasive as to decide not to defer cases to Israeli government investigation and prosecution.
For example, a report issued by the UK Foreign and Commonwealth Office on January 21, 2015, said: "We continue to be concerned about the dual court system employed in Israel and the OPTs [occupied Palestinian territories]. All Palestinians, except those residing in East Jerusalem, are subject to trial in Israeli military courts, regardless of the charges against them, while Israeli settlers are tried in Israeli civil courts."
The US Department of State's "Country Report on Human Rights Practices for 2014, Israel and The Occupied Territories" confirms the UK report of separate and unequal legal systems:
Non-Israeli residents of the Israeli-occupied Golan Heights were subject to the same laws as Israeli citizens. Noncitizens of Palestinian origin detained on security grounds fell under military jurisdiction even if detained in Israel.
... Authorities held most Palestinian minors (under age 18) arrested in the West Bank and Gaza in prisons in Israel but prosecuted them under the Israeli military law applicable to the occupied territories, which denies many of the rights they would be granted under Israeli law.
In addition, the US State Department country report for Israel gives details of the system of "administrative detention" without trial that has been exclusively reserved for Palestinians. "[T]he 1979 Emergency Powers Law allows the defense ministry to detain persons administratively without charge for up to six months, renewable indefinitely."
The report also presents allegations of torture and abuse in the Israeli legal system exclusively directed at Palestinians. The report states that "human rights organizations alleged that interrogation methods permitted by [Israeli] law and actually used by [Israeli] security personnel included beatings and forcing an individual to hold a stress position for long periods." The report also states that "Nongovernmental organizations (NGOs) continued to criticize other alleged detention practices they termed abusive, including isolation, sleep deprivation, and psychological abuse such as threats to interrogate family members or demolish family homes." The report describes the alleged torture of Palestinian Arafat Jaradat, who died in custody at Megiddo prison in Israel.
The UK and the US State Department reports were consistent with the Report of the UN Fact-Finding Mission on the Gaza Conflict, issued on September 25, 2009:
The Mission emphasizes that effective investigation and, if appropriate, prosecution resulting from acts by its agents or by third parties involving deprivation of life, serious injuries and torture or inhuman or degrading treatment or punishment, and other possible violations of international humanitarian law and human rights law, is an obligation of the State of Israel. The mission is concerned that the facts before it point to a failure by Israel to do so with regard to acts committed against Palestinians as reported above. 
... The Mission is also gravely concerned at the increased use of force, including the use of lethal force, in response to demonstrations, and at the generalized violence of security forces against Palestinians living under occupation in the West Bank. Of particular concern is the apparent and systematic lack of accountability for acts of violence committed by Israeli security forces against Palestinian civilians. 
The UN Fact-Finding Mission highlighted its concern about the Israeli legal system by noting that,
Michael Sfard, a prominent Israeli human rights lawyer, concludes in an article entitled "The price of internal legal opposition to human rights abuses", in which he reviews 35 years of human rights practice in Israel, "by lodging petitions to the Israeli High Court, human rights lawyers act as public relations agents of the occupation by promoting the notion that Palestinian residents have a recourse to justice." [FN 762]
The UN Fact-Finding Mission also noted that:
... If settlers are convicted, the sentences are reported to be very light. This practice should be contrasted with the harsh treatment and punishment meted out to Palestinians who harm Israelis. This has been described as a discriminatory policy. Similarly, action against members of security forces who commit acts of violence, including killings, serious injuries and other abuses, against Palestinians is very rare. Information available to the Mission points to a systematic lack of accountability of members of the security forces for such acts. 
... The Mission concludes that there are serious doubts about the willingness of Israel to carry out genuine investigations in an impartial, independent, prompt and effective way as required by international law. The Mission is also of the view that the Israeli system presents inherently discriminatory features that have proven to make the pursuit of justice for Palestinian victims very difficult. 
The Israeli government itself found serious inadequacies in the Israeli legal system. Prime Minister Netanyahu appointed an official Israeli government public commission headed by former Israeli High Court Justice Jacob Turkel to investigate the 2010 flotilla incident. The commission was also charged with investigating how Israel examines and investigates claims that it violated the laws of armed conflict under international law.
Although the Turkel Commission report lined up with the Israeli government's views regarding the flotilla and the blockade of Gaza, and although it cleared Israeli soldiers of any wrongdoing, it issued 18 recommendations in the report it submitted to Prime Minister Netanyahu in February 2013.
The first of these recommendations noted that Israeli criminal law does not include crimes recognized in international criminal law, including the war crimes established under the Rome Statute of the ICC. The Turkel Commission's first recommendation was that legislation be adopted by Israel making these war crimes illegal under domestic Israeli criminal law.
Although Prime Minister Netanyahu appointed a second commission under Dr. Joseph Ciechanover to oversee implementation of the Turkel Commission recommendations, no action has yet been taken regarding including Rome Statute crimes into Israeli law, as described in an October 2015 analysis of the status of the 18 recommendations conducted by Israeli human rights organization Yesh Din.
Because Israel did not add war crimes to its domestic law when the Turkel Commission made the recommendation in 2013, alleged war crimes under the Rome Statute since June 13, 2014, cannot be investigated and prosecuted by the Israeli legal system.
Israel's own official Turkel Commission urged action to close the gap between domestic criminal law and war crimes under the Rome Statute to effectively shield Israeli nationals from prosecution in an international tribunal. Israeli political leaders failed to do so. Israeli political and military leaders must be aware that the ICC prosecutor is therefore unlikely to find that the Israeli legal system is willing and able to investigate and prosecute its citizens for alleged war crimes under the Rome Statute.
Also inconsistent with Netanyahu's claim regarding the Israeli legal system, the June 22, 2015, report of the Independent Commission of Inquiry established by the UN Human Rights Council states:
The commission is concerned that impunity prevails across the board for violations of international humanitarian law and international human rights law allegedly committed by Israeli forces, whether it be in the context of active hostilities in Gaza or killings, torture and ill-treatment in the West Bank. Israel must break with its recent lamentable track record in holding wrongdoers accountable, not only as a means to secure justice for victims but also to ensure the necessary guarantees for non-repetition.
A fact sheet produced by the Palestinian Center for Human Rights (PCHR) describes the results of 409 criminal complaints submitted to the Israeli military advocate general in the months following Israel's massive assault on Gaza in 2008 and 2009, "Operation Cast Lead." The complaints included a wide range of war crimes, including "willful killing, the direct targeting of civilians and civilian objects, the extensive destruction of property, and indiscriminate attacks." After three years, PCHR received only two substantive responses. One indicated that the case was closed, and one that the soldier was convicted of credit card theft and had been sentenced to seven and a half months in jail. PCHR stated:
It is PCHR's unequivocal conclusion that the Israeli authorities have comprehensively failed in their legal obligation to conduct effective criminal investigations into allegations of international crimes, denying the fundamental rights of victims in the Gaza Strip to a remedy, and the equal protection of the law.
It is clear the recourse must now be had to mechanisms of international criminal justice. These cases must be investigated by the International Criminal Court. Victims' rights must be upheld, and those responsible held to account.
The PCHR report also noted serious flaws with the Israeli legal system because the military advocate general, to whom complaints must be directed, has conflicting roles.
A three-page letter to the Israeli military advocate for operation affairs from B'Tselem, the Israeli Information Center for Human Rights in the Occupied Territories, dated September 4, 2014, and a more detailed article, dated September 5, 2014, describe how the military is expected to investigate itself. The letter also describes how the dual role of the military advocate general creates an inherent conflict of interest and precludes independent and impartial investigation of crimes committed by Israeli forces. The letter indicates that no mechanism exists for investigating the involvement of senior political officials and military commanders in unlawful activity. The letter also describes how the procedure followed to conduct an operational inquiry before conducting a criminal investigation causes delays of many months, compromising the reliability of witness accounts given by soldiers.
The B'Tselem letter describes results of this flawed process for the major assaults on Gaza in 2008 and 2009 and in 2012, and projects similar failures in relation to the 2014 assault, since "the Israeli law enforcement system remains unchanged." Emphasizing its point, in its letter to the Israeli military advocate for operation affairs, B'Tselem stated that it:
has decided not to send you such information [about incidents that took place during the summer 2014 operation in which breaches of the law are suspected] and not to assist the Military Advocate General (MAG) Corps in any matter concerning such investigations ... We have adopted this position in light of our experience with previous military actions in Gaza, which shows that investigations led by the MAG Corps do not promote accountability among persons responsible for such violations or reveal the truth.
A report issued by B'Tselem in June 2015 describes how routine approval of motions for remand in custody - detention for the duration of all legal proceedings - prejudice judicial outcome against Palestinians charged in Israel's military courts. "This façade of propriety masks one of the most injurious apparatuses of the occupation."
A paper published in 2013 by Adalah, the Legal Center for Arab Minority Rights in Israel, describes procedural and financial barriers to justice that Israel has imposed, which prevent Palestinian victims of Israeli military actions in Gaza from pursuing cases and obtaining a legal remedy from Israeli courts.
As described in the Adalah paper, the obstacles imposed in the Israeli "Civil Wrongs Law," as amended for residents of the West Bank and Gaza, include requirement to file a notice within 60 days of the alleged tortuous conduct by Israeli authorities, and a statute of limitations reduced from seven years for other suits to two years for these suits. Declaring Gaza to be a hostile entity in 2007, Israel imposed sanctions on its population, banning movement in and out, including for the purpose of participating in or completing legal procedures in Israel. Israel also banned Israeli lawyers from entering Gaza without permission from the military commander. Thus, ordinary legal work - including meetings of plaintiffs and their lawyers, visits to the scene of the event, interviewing witnesses and signing documents required to file notices and lawsuits within the short time limitations - becomes impossible, and cases are dismissed at the request of the state or on the initiative of the judge for failure to meet the deadline even though the state controls the border and uses that control to prevent meeting the deadline.
In addition, the Civil Wrongs Law exempts the state from civil liability "for an act undertaken in the course of a military operation of the Israeli Defense Forces," even if the act that caused the death, injury or damage to property was in violation of the laws of war. Thus, the state evades responsibility for violations of the laws of war.
In addition, Adalah reports that the state imposes a heavy fee on each plaintiff in each suit, supposedly to cover the state's costs, but the effect is to dissuade recourse to legal action and to force victims who bring cases to compensate the perpetrator.
Thus, Adalah concludes that while Israeli legislation and case law guarantees to Palestinian victims of the Israeli security forces the right to obtain a legal remedy, that right is denied in practice due to the obstacles placed before it by the State of Israel. The victims are left without legal remedy.
"At the same time that Israel created these barriers, it also claimed before foreign courts and other international forums that these victims had an effective remedy before Israeli courts," the Adalah paper notes.
Similarly, a Los Angeles Times op-ed by George Bisharat, a professor at the University of California, Hastings College of the Law in San Francisco, describes the Israeli criminal legal system as applied to Palestinians:
To Palestinians, Israeli military courts are sites of repression, not houses of justice. Palestinian defendants facing trial in 2010 were found guilty in 99.74% cases, according to Israel Defense Forces documentation. Proceedings are conducted in Hebrew, which few Palestinians speak. Judges and prosecutors answer to higher military authority, denying military tribunals full independence. Courts may renew administrative detentions in six-month increments indefinitely. Some Palestinians have been so detained for years, never having enjoyed the right to confront and cross-examine witnesses nor even to know the evidence against them.
... Israeli courts may provide justice to Jews living in Israel or the occupied Palestinian territories. But a legal system that is fair to one ethno-religious group while trampling the rights of others deserves to be recognized for what it is: a handmaiden to apartheid.
Israel's self-characterization as a "Jewish state" is institutionalized by dozens of laws that discriminate against Palestinians, particularly Palestinians living in the occupied West Bank and Gaza. The "Discriminatory Laws Database" includes more than 50 such laws.
Segregation and discrimination are apparent in the area's segregated schools, segregated towns, segregated roads, segregated buses, land expropriation, home demolitions, Jewish-only settlements, non-recognized Palestinian villages and unequal access to water. The extrajudicial executions, detention without charge and without trial, torture of prisoners, secret witnesses and collective punishment all deviate from due process of law, and all are applied exclusively to Palestinians. Repression of peaceful protest and use of live fire, exclusively in repression of peaceful Palestinian demonstrators; denial of freedom of movement exclusively for Palestinians; expropriating Palestinian territory; and the separation wall crossing Palestinian territory are all illegal ways of enforcing supremacy for the Jewish population of the "Jewish state."
The Israeli legal system has allowed Israeli political and military leaders and military personnel to enjoy impunity notwithstanding six assaults on civilians and civilian infrastructure in Gaza since 2006.
The evidence from the US and UK governments, two independent UN Human Rights Council reviews and several nongovernmental organizations suggests that the Israeli legal system fails to meet the standard of impartiality, independence and willingness required by the Rome Statute for investigating and prosecuting Israeli political and military leaders for their actions in Gaza. The disparity in the investigation and prosecution of crimes allegedly committed by Israeli settlers and by Israeli military forces - compared to those allegedly committed by Palestinians described by the UK Foreign and Commonwealth Office, the US State Department, UN commissions and nongovernmental organizations - are consistent with all three branches of the Israeli government, including the legal system, characterized by pervasive de jure and de facto segregation, discrimination and apartheid, particularly in the occupied Palestinian territories. The Israeli legal system that allows a pervasive separate and unequal system to exist, and that has institutionalized impunity, precludes itself from meeting standards required by the Rome Statute of impartiality, independence, and willingness and ability to investigate and prosecute Israeli political and military leaders.
The ICC prosecutor will have the opportunity to provide an independent and impartial review of the Israeli legal system in her consideration of whether to defer investigation and prosecution to the Israeli legal system. If the prosecutor determines that the Israeli legal system is as described by Netanyahu, the ICC will be able to defer cases for Israeli investigation and prosecution. The prosecutor and the pre-trial chamber will also be able to refuse to defer, if they determine that justice for Palestinians is not genuinely available under the Israeli legal system.
If the ICC refuses to defer cases to the Israeli legal system, those individuals responsible for the impunity, segregation, discrimination and apartheid alleged by the authoritative governmental and nongovernmental sources will be subject to investigation and prosecution by the ICC.
Coming Next: The next two installments of this series will address Prime Minister Netanyahu's claim that the ICC should not be inquiring into the situation in Palestine because "Israel is legitimately defending itself against Palestinian terrorists." The first of these installments will show that it was Israeli forces that actually initiated the combat. In addition, admissions by top Israeli officials during the assault contradicted their widely touted self-defense claims. Then, after presenting the international law regarding self-defense, the final installment of this series will show that even if the facts were otherwise, Israel lacks any valid legal basis for its self-defense claim.