In order to counter NGO lobbying campaigns pushing for proceedings against Israel in the International Criminal Court (ICC), NGO Monitor filed a submission with the Court on October 21, 2010. The brief provided missing context, corrected questionable legal claims made by these groups, and offered detailed information on NGO lawfare.
Lawfare is rooted in the NGO Forum Declaration of the 2001 Durban Conference, which called for the “establishment of a war crimes tribunal” against Israel. Since then, NGOs have waged a concerted campaign exploiting courts around the world to advance their anti-Israel political agendas. One of these venues is the ICC.
Although the ICC statute mandates that only states may join the court, after the Gaza War the Palestinian Authority claimed to accept the Court’s jurisdiction so that Israelis could be brought to trial as alleged “war criminals.” Instead of immediately rejecting the PA’s declaration, the ICC Office of the Prosecutor (OTP) has conducted a very political and public campaign purporting to “debate” the legal issues raised by it.
NGOs immediately joined this effort. Amnesty International, Human Rights Watch, FIDH (France), and several EU-, European-, and NIF-funded NGOs have actively lobbied the Court in support of the PA’s effort to launch war crimes trials against Israel. These NGOs include Al Haq (funded by Ford Foundation, Christian Aid, Ireland, Norway, Open Society Institute, Spain), PCHR (EU, Denmark, Switzerland, Sweden, Netherlands, Norway, Ireland, Open Society Institute, Christian Aid, Oxfam Novib), Adalah (NIF and EU), and PCATI (EU, Sweden, Norway, Ireland, Finland, UK, NIF). This lobbying campaign included several meetings with the OTP, and filing briefs with the ICC accusing Israel of “impunity” and denigrating the Israeli justice system.
NGO Monitor’s submission directly addresses the distortions in this campaign.
NGO Monitor released an updated version of a monograph on this topic, further detailing how European funding is being used to prepare “war crimes” cases against Israeli officials.
Summary of the Argument
I. The Palestinian National Authority is not a State. It does not have the competence to accede to the Rome Statute.
II. The Position Known as the “Teleological Approach” is Nothing More than a Thinly Veiled Attempt to Change the Explicit Wording of the Rome Statute, Transforming the ICC into a Court of Universal Jurisdiction. Universal Jurisdiction for the ICC was Expressly Rejected by the Drafters of the Statute.
A. The “object and purpose” of the Rome Statute do not support a “teleological” interpretation of “Statehood.”
1. The Treaty codified a system of complementarity with national courts. The ICC was never intended to supplant national jurisdiction.
2. Article 15 does not allow the Prosecutor to open cases that do not fall within the jurisdictional pre-conditions specified in Article 12.
3. The drafters of the Rome Statute explicitly rejected universal jurisdiction.
III. Claims of a “Zone of Impunity” in this Case are False, Misleading, and Highly Offensive.
A. The Rome Statute and the UN Charter Provide Clear Mechanisms to Prevent Impunity.
B. Israel is Committed to the Rule of Law. Submissions Alleging a “Zone of Impunity” in Israel are False, Misleading, and Highly Offensive.
1. Israel is a “social and democratic state with rule of law.”
2. Courts around the world have repeatedly and soundly rejected the claims of Al Haq and PCHR that impugn the Israeli legal system.
3. Israel is currently conducting investigations as to whether violations of international law took place during the Gaza War.
4. A negotiated settlement between the parties will provide additional remedies for those who may have suffered wrong-doing.
IV. The PNA and its Supporters Have “Unclean Hands”. The Court should not Allow Itself to be Exploited by Those Who Brazenly Flout its Authority.
A. The PNA and its State supporters in the Arab League are Marred by “Unclean Hands.” As a Result, the PNA Declaration Must be Immediately Rejected.
1. The PNA and the members of the Arab League are some of the foremost perpetrators of international crimes and have repeatedly and openly challenged the authority of the Court with regards to the case against Sudanese President Omar al-Bashir.
2. In its declaration, the PNA represented that it would “cooperate with the Court without delay or exception” pursuant to Part 9 of the Rome Statute. It has not kept its promise.
B. Several NGO supporters of the PNA declaration are also marred by “unclean hands.”
V. The PNA Declaration and its support by NGOs is Part of the “Durban Strategy” or “War by Other Means.”