Top lawyers specializing in cases before the International Criminal Court (ICC) have filed a submission questioning the admissibility of cases regarding Israeli settlements. Steven Kay QC and Joshua Kern of 9 Bedford Row chambers in London made the submission with support from The Lawfare Project and UK Lawyers for Israel (UKLFI). An article regarding the submission is available here.
The submission emphasizes that the Israeli Supreme Court (sitting as the High Court of Justice) plays an active role ruling on matters relating to Israeli settlements. Because Israel’s own courts already rule on the issue and have issued several landmark rulings on settlements in the past, such cases are not admissible before the ICC. That is because—according to the core principle of “complementarity” under the Rome Statute, which governs the ICC—the ICC is not supposed to rule on issues where there are genuine proceedings before national courts.
The submission by 9 Bedford Row, with support from The Lawfare Project and UKLFI, comes after the Office of the Prosecutor (OTP) of the ICC published its annual report on preliminary examinations in December 2018. The report discloses that the OTP intends to complete its examination of “the Situation in Palestine” as early possible and is now at “Phase 3”, which is the stage in the process when it considers the admissibility of the situation. At this point, therefore, the OTP needs to consider both the gravity and the complementarity of the situation.
Should the OTP decide to prosecute an Israeli settlements case, it could violate the complementarity principle.
Stephen Kay QC of 9 Bedford Row, who filed the submission, said:
“Israel has a functioning, independent, institutional framework which permits investigation of conduct that would be covered by potential settlements cases at the ICC. Under the core ICC principle of complementarity, prosecutors should accept the validity of decisions taken by Israel’s national courts. If they are not prepared to do that, then the burden of proof will be on them to say why.”
Brooke Goldstein, Executive Director of The Lawfare Project, which supported the submission, said:
“An ICC case on ‘settlements’ would totally ignore the fact that Israel’s courts have frequently ruled and continue to rule on these issues. It would be yet another attempt at applying double standards to Israel. Double standards inspire a lack of trust in the international legal system and undermine the sanctity of international law. The Lawfare Project is proud to support this fresh legal approach to challenging lawfare attempts at circumventing the rule of law.”
Jonathan Turner, Chief Executive of UK Lawyers for Israel, said:
“This excellent submission unpicks a number of basic fallacies in claims made by some NGOs in relation to Israel. Further work needs to be done to counter other serious misconceptions.”
A more detailed explanation of the points below.
Summary of key points of the submission
The submission addresses a number of factors that would render a potential settlements case inadmissible before the ICC. These include:
Complementarity and the Rome system of justice
The issue of complementarity is a feature of the Rome Statute on which the work of the ICC is based. Article 17(1)(b) of the Rome Statute states that a case is inadmissible where the Court determines that it is has in fact been investigated by the State that has jurisdiction over it and the State has determined not to prosecute. Israel’s Supreme Court frequently issues rulings on settlements so, according to this principle, it is questionable that such cases should be heard by the ICC.
Complementarity analysis does not require uniformity between legal systems
Complementarity is not the same as uniformity. The process should therefore allow for pluralism and diversity of legal systems. The fundamental question is, do the courts in the state in question carry out legal proceedings genuinely?
The Israeli courts have not held that the Israeli government’s settlements policy is non-justiciable
The OTP Report asserts, wrongly, that the Israeli Supreme Court has held that “the issue of the Government’s settlements policy is non-justiciable”—i.e., that it is not something that the Israeli courts can rule on. The submission argues, however, that this is not the case as Israel’s Supreme Court, sitting as the High Court of Justice (HCJ), has ruled on the legality of settlements, including settlements policies, in landmark judgments in the past.
Further analysis of the HCJ jurisprudence in settlements cases shows that the HCJ has in fact ruled on settlements policy where the property rights of an individual are concerned. In Dweikat, for example, a petition challenged the legality of establishing a civilian settlement on the outskirts of Nablus on land privately owned by Arab residents. In that case, although state counsel argued this was non-justiciable, the HCJ rejected the argument and held that, because the petition claimed that the authorities had acted illegally in taking the land of a specific individual, it would examine the argument on its merits.
So, Israel’s courts do rule on settlements policy, and the OTP’s conclusion that the HCJ has found the issue of settlements policy to be non-justiciable is misleading and should be revisited.
The Israeli government does not consider all settlements activity to be lawful
It is wrong for the OTP Report to assert that the Israeli government considers all settlements activity to be lawful. As made clear above, settlements construction is subject to judicial challenge.
Where a petitioner’s individual rights are affected, the HCJ will assume jurisdiction and will ask itself in each case whether an interference “represents a proportional balance between the security-military need and the rights of the local population.” HCJ 7957/04, Zaharan Yunis Muhammad Mara’abe & ors v The Prime Minister of Israel & ors., para. 74.
Furthermore, the HCJ has independently determined that certain settlements activity is lawful and other activity is unlawful. It approaches the situation on a case-by-case basis.
Thirdly, at the level of municipal law, anyone who carries out construction work requiring a permit without receiving one is liable to a fine or two-year prison sentence.
It is therefore potentially misleading to assert, as the OTP’s report does, that the Israeli government “has consistently maintained that settlements-related activities are not unlawful,” without recognizing the illegality of unauthorized construction under local law.
Israeli Supreme Court proceedings are complementary to a potential settlements case
Israel’s High Court of Justice (HCJ) has investigated settlements activity, including the legality of appropriation of land and construction of settlements, the demolition of property and eviction of Palestinian residents, the regulation of construction, and unauthorized outposts. These are the typologies of settlements activity that the OTP report discloses are under preliminary examination. But given the number of these cases on which the HCJ has already made genuine factual and legal rulings, there are only a limited number of potential settlements cases that are admissible before the ICC.
B’tselem, an NGO, recently published a report that aimed to argue that the HCJ’s justices may themselves bear criminal responsibility for their alleged role in legitimizing the demolition of Palestinian homes and dispossession of Palestinians. But B’tselem’s research in fact shows that access to the HCJ for Palestinian petitioners is increasing. Therefore, the OTP should be cautious when reading reports by NGOs that make arguments that are in fact contradicted by the facts they cite.
Burden of proof and the need to avoid double standards
The OTP needs to make decisions regarding any potential settlements case using a similar burden and standard of proof that it would apply for any state, while also remaining mindful that Israel is not a State Party to the Rome Statute. When a state’s own legal system has already investigated a case, the OTP should presume that state’s good faith. If it is going to apply a different standard to Israel’s legal system, the burden falls on the OPT to rebut that presumption.
There is in Israel a functioning, independent, institutional framework that permits investigation of conduct falling within the parameters of a potential settlements case. The OTP should accordingly accept prima facie the validity and effect of the decisions of domestic courts unless presented with compelling evidence indicating otherwise. The burden of proof must fall on the OTP to displace the presumption of good faith to be afforded to the HCJ’s decisions in its assessment of unwillingness and inability.
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