The ICC and complementarity ~ Elder Of Ziyon

Monday, November 25, 2024

The ICC and complementarity

In the previous post, I quoted Alan Dershowitz in the WSJ about why the ICC case is baseless. This is one reason he gives:

We will argue that the ICC has no jurisdiction against Israel, not only because it isn’t a member, but also because the treaty that established that court precludes it from considering cases against any country with a valid judicial system that is willing and able to investigate the alleged crimes. This concept is called “complementarity.” Israel has one of the best and most independent legal systems in the world, one that is both willing and able to investigate its own leaders. The Israeli courts have convicted and imprisoned a former prime minister, a former president and several ministers. Hamas has no such judicial system.

When the ICC prosecutor Karim Khan first announced his intention to request arrest warrants earlier this year, Israeli international law experts Amichai Cohen and Yuval Shany wrote about this topic of complementarity, and the case is not so clear cut.

Just because Israel has an independent judiciary, a High Court that can (and has!) heard cases regarding the Gaza war, and an independent military court system to investigate crimes by soldiers, is not enough for what the ICC demands. They are saying that since Israel has not already opened up a criminal investigation against Netanyahu and Gallant that the state is not willing to prosecute them so therefore the ICC must step in.

The argument is absurd - for Israel to open up a criminal investigation there must be evidence of crimes committed by those two individuals. That requires months of investigations ahead of time to gather the evidence, and given that Israel is not acting any differently than any other country would in a war against an enemy that embeds itself among civilians, there is no evidence at all of criminal activity.

Nevertheless, Israel should have taken the ICC prosecutor's intent more seriously. While opening up a criminal investigation when there is no evidence of crimes (like intentional "starvation") would be an insult, Israel could have created a non-criminal Commission of Inquiry into the war which would, according to ICC precedent, be adequate for addressing the complementarity requirement. That is what Cohen and Shany recommended then, and it is something that the Israeli public wants to see, not only for the conduct during the war but also for the intelligence failures that led to the war.

The ICC, according to its own policies, should be encouraging such an investigation. Its evidence against Israel is secret, but its memo written in April on cooperation and complementarity says that the ICC should work with, not against, national authorities to encourage their own investigations; presumably that would involve sharing the evidence it claims to have that would not compromise the lives of "witnesses" (in reality, virtually all of their "evidence" probably came from Al Jazeera reports.) Prosecutor Khan did not even attempt to cooperate with Israel on his brand new charges of "starvation" which appear to have circumvented the ICC's own procedures.

From all I can tell, the Netanyahu government did not take the ICC announcement last May seriously enough. As Haaretz writes:

Since last June, Israel's Attorney General Gali Baharav-Miara has warned Netanyahu on several occasions that his failure to establish a state commission of inquiry into the events of October 7 could expose the country to risks in the international legal arena. In a letter to Netanyahu, Baharav-Miara wrote, "No other existing mechanism is adequate for addressing the unique risks the country faces at this time."

Also in June, former Supreme Court Justice Menachem Mazuz told Haaretz that the most appropriate solution to Israel's crisis with the World Court was the establishment of a state commission of inquiry into the war, the members of which would be appointed by the president of the Supreme Court. Despite this, Netanyahu refrained from setting up such a commission.

Israel can still do this, although it is more difficult because it would appear more like a response to the ICC than an organic desire for an investigation. Israel's history of independent Commissions of Inquiry does not help this situation now, as Dershowitz seems to be arguing.

Still, if sch a COI includes prominent independent legal figures and has a mandate that theoretically could lead to criminal charges, it is something that should be done. Even though it is an insult to the State of Israel to even consider that its wartime decisions are criminal, the damage done by the ICC warrants overrides the insult.

Israel has not handled the public portion of these wars competently. Hoping that a new prosecutor will drop the case is not a strategy. This is one aspect where it dropped the ball.

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