NGO Amicus Briefs on ICC Jurisdiction: The Latest Lawfare Battlefield
Since the creation of International Criminal Court (ICC), NGOs leading the demonization and delegitimization of Israel have intensely lobbied for the Court to target Israel. For instance, the Final Declaration of the NGO Forum at the 2001 UN Durban Conference “call[s] for the establishment of a war crimes tribunal to investigate and bring to justice those who may be guilty of war crimes, acts of genocide and ethnic cleaning and the crime of Apartheid which amount to crimes against humanity that have been or continue to be perpetrated in Israel and the Occupied Palestinian Territories.”1
Reflecting the NGO campaign, in December 2019, the ICC Prosecutor filed a brief with the Pre-Trial Chamber asking for confirmation of jurisdiction to open an investigation in the “Situation in Palestine.” The Court determined that those authorized to intervene in the case (State parties, interested States, victims, and Amicii) could file Observations by March 16, 2020. (See NGO Monitor’s brief; other notable submissions include those from international law expert, Malcolm Shaw; Dennis Ross; and Irwin Cotler.2)
At least 50 briefs were filed, including several from NGOs leading the demonization of Israel, and many funded by European governments. These NGO submissions involve highly flawed or invented legal arguments; deviation from the requirement limiting discussion to that of jurisdiction; revision and erasure of the historical record, including Palestinian terrorism; promotion of biased source material; and in at least one case, filing as “victims” to circumvent the requirement to have obtained permission from the Court to provide Observations.
Importantly, as part of the NGO Durban Declaration and accompanying BDS campaigns, advocacy organizations have sought to turn the ICC into a court of universal jurisdiction. Like their exploitation of the UN and other international frameworks, these NGOs seek to use the ICC for demonization and to brand Israeli officials as “war criminals.” In contrast, the ICC was created for the explicit and narrow purpose of prosecuting individuals accused of specified crimes, and not for political legal warfare.
Examples of false allegations and irrelevant remarks in NGO submissions to the Court include:
Palestinian Center for Human Rights (PCHR), Al-Haq, Al Mezan, Al-Dameer
- Three of the four NGOs have established ties to the PFLP terror group, as documented in NGO Monitor reports on PCHR, Al-Haq, and Al-Dameer.
- All four NGOs receive significant funding from European governments to engage in lawfare. PCHR and Al-Dameer received money from Switzerland requiring them, respectively, to “conduct communications with the Office of the General Prosecutor of the ICC” and “provide information and reports to the International Criminal Court on human rights violations committed by the IOF [Israeli Occupation Forces].”
- The brief goes further than the Prosecutor in putting forth Palestinian historical revisionism and propaganda. For instance, “We maintain that Palestine existed as a State prior to the British Mandate.” The NGOs also reject the legitimacy of the November 1947 UN partition resolution.
- Quotes Israeli NGOs Adalah’s and B’Tselem’s objections to the Oslo accords, but these criticisms are irrelevant, and in no way alter the legal validity of the agreements. In contrast to the NGO claims, the Palestinian Authority has no criminal jurisdiction that it can delegate to the ICC. Without the authority of the Palestinian Authority to delegate criminal jurisdiction, the ICC has no jurisdiction to act in this situation.
- Attempts to delegitimize the amicus brief filed by the Israeli Bar Association that criticized the Prosecutor’s claims, by annexing a letter from some Israeli lawyers who dissented from the IBA’s decision to file such a brief. Attaching the letter as an annex to the NGO brief circumvents the Court process requiring the signatories separately to seek permission to file observations.
PCHR II: “On Behalf of Palestinian Victims Residents of the Gaza Strip”
Raji Sourani, Chantal Meloni, Triestino Mariniello
- PCHR submitted a second amicus brief, this one “on behalf of hundreds of Palestinian individual victims residing in the Gaza Strip…. who have suffered direct harm as a result of grave crimes within the jurisdiction of the Court…. committed in the context of the so-called operation ‘Protective Edge (7 July – 26 August 2014), and in the context of the military repression by the Israeli forces of the weekly ‘March of Return’ that began on 30 March 2018.”
- Although PCHR’s name does not appear on the brief, the two main counsels are Raji Sourani, head of PCHR, and Chantal Meloni, who “collaborates with” PCHR since 2010. Meloni previously worked for the ICC Prosecutor’s Office.
- The brief contains a section (pp 21-27) on “Victims’ Specific Views and Concerns.” As opposed to jurisdictional questions, PCHR complains about “the ostensibly narrow scope of the investigation taken by the Prosecutor” and proceeds to demonize Israel by inventing “systematic crimes.” In addition to these claims being false, they are irrelevant as to the narrow issue currently before the Court: namely, whether the Palestinian Authority qualifies as a State for purposes of the ICC to exercise its jurisdiction. Without jurisdiction, the Court has no authority to intervene:
- “Victims are concerned, for instance, about the lack of consideration given by the OTP to the broader context of the Gaza Strip – the ongoing military occupation, the 14 year-long blockade, the unlawful segregation and collective punishment of the population.”
- “The [ICC Prosecutor’s Preliminary Examination] Report fails to mention the overall number of Palestinians killed – among whom 1,540 civilians – wounded and displaced. It also fails to address the widespread targeting and destruction of civilian infrastructure, including thousands of family homes, medical facilities, educational institutions – including UN schools converted into makeshift shelters for displaced persons – electricity, water and sewage infrastructure, and religious buildings.”
- “Victims are also concerned about the apparent lack of consideration of crimes against humanity, in particular, but not only, in connection with the incidents reported on the Great March of Return. Moreover, Victims wish to highlight that the responsibility for such systematic crimes lies at the highest levels of the Israeli military and political chain of command.”
- PCHR also complains about “delays” in investigating Israel. According to PCHR, “for over 10 years now, the ICC Prosecutor has been called [by the NGOs and Palestinian officials] to initiate an investigation into the Situation and on the crimes committed in the Gaza Strip in particular. Such a call has been voiced repeatedly at the international level – inter alia – by UN-mandated Fact-Finding Missions or Commissions of Inquiry, international NGOs, and scholars.” The NGOs listed in the citation are Human Rights Watch, Amnesty International, and FIDH — all known for their intensive anti-Israel campaigns. Regardless, PCHR’s charge is baseless. If the Court does not have jurisdiction, it cannot act, regardless of how many NGOs or UN Missions (that largely copy and past unverified claims from these same NGOs) complain about it.
Defense for Children International – Palestine (DCI-P)
- DCI-P is also linked to the PFLP. Numerous individuals with alleged ties to the Popular Front for the Liberation of Palestine (PFLP) have been employed and appointed as board members at DCI-P.
- The brief is signed by two DCI-P officials, Brad Parker and Khaled Quzmar, both presenting themselves as “Legal Representative of Victims,” but without noting their affiliation with and positions at DCI-P.
- DCI-P claims its “submissions are filed on behalf of Palestinian children unlawfully killed by Israeli forces … and their immediate family members (‘the victims’).” However, none of these alleged victims is listed by name, DCI-P does not define the category (see the amicus on behalf of Khan al-Ahmar residents below), nor does DCI-P disclose whether it filed a confidential Annex with the Court identifying these victims (see PCHR’s second brief above). By filing a “victims” submission, DCI-P could circumvent the requirement to have filed a request seeking permission to file an amicus brief by February 14, 2020.3
- DCI-P’s “background” section comprises a prejudicial discussion of the West Bank and Gaza and the same unverified (and irrelevant) allegations about “killing and maiming of children during Operation Protective Edge” repeated in most DCIP publications – including “overwhelming force directed at residential and densely populated areas”; “Increasing use of live ammunition and unjustified use of intentional lethal force against Palestinian children”; and “The Great March of Return.” The short section on jurisdictional issues also includes unrelated allegations of Israeli violations. This overall emphasis indicates that DCI-P’s submission was not to focus on the narrow legal issue at hand, but rather an attempt through emotional and hyperbolic rhetoric to prejudice the Court.
- The amicus briefs are supposed to deal with questions of jurisdiction. However the majority of DCI-P’s submission is “Relevant Contextual and Factual Background,” restating claims made in two DCI-P pseudo-legal publications on the 2014 Gaza war and a joint submission by DCI-P and CUNY School of Law Human Rights and Gender Justice Law Clinic to the UN Commission of Inquiry into the Gaza border violence (which began March 2018).4
Katherine Gallagher, “Legal Representation of Persecution Victims”
- Gallagher is Senior Staff Attorney at the Center for Constitutional Rights (CCR), an affiliation that is unmentioned in the brief. CCR, a US-based political advocacy NGO that has previously lobbied the ICC to target Israel, is one of the most active NGOs in lawfare suits against Israel and Israeli officials. It also promotes anti-Israel BDS and campaigns for the United States to end military aid to Israel.
- The brief purports to represent the interests of 20 victims who “have received no remedy and no accountability for the intentional and severe deprivation of their fundamental rights – a denial of rights that is predicated on their national identity as Palestinians, which constitutes inter alia the crime against humanity of persecution.”
- The brief goes well-beyond the specific question of jurisdiction, with one-third being devoted to alleging, in detail, a variety of crimes “suffered” by the individual victims. It also aims to “plac[e] this technical question” of jurisdiction “in the larger context of the long quest for justice and accountability by Palestinian victims of serious violations of international law.” Like DCI-P, this is an attempt to emotionally manipulate the Court – not to provide perspectives on the legal question of jurisdiction.
- Highlighting the weak and expansive nature of the alleged violations, seven of them claim to have been arbitrarily “denied access to [the West Bank or Gaza] – their homeland – by Israeli authorities.” The full context of the cases are not provided so it is unknown if these individuals or their families had connections to Palestinian terror organizations. Gallagher then takes these weak claims and attempts to transform them into crimes against humanity so they could ostensibly be heard by the Court if it takes jurisdiction.
Hatem Bazian, President of American Muslims for Palestine (AMP) and co-founder of Students for Justice in Palestine (SJP)
- Bazian is a prominent supporter of BDS and has called for an intifada in the United States.
- AMP is a pro-BDS organization, whose rhetoric includes accusations of “apartheid,” “ethnic cleansing,” and “genocide.”
- In approving the list of those who could submit amicus briefs, the Court specifically highlighted Bazian’s application as “appear[ing] to exceed, in part, the question of jurisdiction…[by] alleg[ing] conduct possibly amounting to crimes falling within or outside the jurisdiction of the Court…Any observations exceeding this question that are nonetheless submitted by any amicus curiae shall be disregarded by the Chamber” (para 57-58 and fn 55). Indeed, Bazian had stated that he would argue that “Structural denial of Palestinian sovereignty by the Great Powers from the past, followed by Israel’s ethnic cleansing, confiscation of land and continued expansion of settlements as well as non-stop violence must be ended by this Court through affirming Palestine’s statehood standing.”
- It seems that Bazian did not heed the warning of the Court and instead prepared a brief solely on the “key contexts [that] must be understood which bear on how the issue should be approached and ultimately determined.” Foremost is that failing to investigate Israel would be “grounded in denying indigenous communities agency over their fate and in propelling colonial theories of sovereignty.” He also discusses the impact on “Palestine’s statehood” of “prevailing global events,” “racial and religious nationalism,” and “millenarianism.” Similarly, the Balfour Declaration “is a colonial legalism that reeks of exploitation, dishonesty in each word used for the sole purpose of covering up the outright ‘civilized’ thievery of Palestine,” and the British Mandate “was a major crime against the Palestinians.”
- Indeed, the entirety of Bazian’s brief, with the exception of two pages on an issue that was dismissed as irrelevant by the Court, consists of an irrelevant diatribe about events in the 1910s and 1920s, with the conclusion that “Not only that I urge the court to recognize Palestine, as a State, but the time is right for London to publicly admit that the Balfour Declaration was a major historical crime against the Palestine, was illegal, led to ethnic cleansing and created a 12-million member Palestinian diaspora. Achieving peace is contingent on justice and can begin to take shape only when this original sin is admitted and recognized as such. This Chamber must correct the record and begin by recognizing Palestinians statehood as a first step toward addressing the systematic denial and obfuscation of their rights.”
Khan al-Ahmar Victims’ Observations
- A brief on behalf of “a large group of victims… specifically children, women, and men from Khan al-Ahmar” was prepared by Liesbeth Zegveld, a Dutch lawyer who has previously worked with Al-Haq and is a member of the the Rights Forum – a political group known for its anti-Israel and pro-BDS agenda.
- This brief has little substantive discussion of the jurisdictional issues, almost entirely restating prejudicial and unfounded arguments already made by the Prosecutor.
- Claims that the Court should assert jurisdiction because not doing so “would be devastating for the Court’s legitimacy,” without providing substantive arguments based on the Rome Treaty.
- Claims that the “contrary views” on the Court’s jurisdiction “appear highly political, anachronistic, and pay no attention to the international community’s responsibility for recognition and protection of all peoples’ equal rights to justice.” No specifics are provided.
FIDH, No Peace Without Justice, Women’s Initiatives for Gender Justice, and REDRESS
- The main author of the brief is FIDH, which has a long history of anti-Israel campaigning (see below). For the most part, the other three NGOs have not been active on Israel.
- FIDH, based in France, is an international confederation of more than 180 NGOs (the FIDH website has conflicting numbers). Palestinian members include PCHR, Al-Haq, and Al Mezan (see above), and Israeli members include Adalah and B’Tselem. Shawan Jabarin, executive director of Al-Haq, is FIDH’s Secretary General for Public Interventions.
- The brief quotes B’Tselem’s political claim that “for years, Israel has enjoyed immunity regarding its actions and policies in the Occupied Territories.”
- For twenty years, FIDH has been a vocal proponent of exploiting the ICC and universal jurisdiction to target Israelis, themes that appear in the brief as well.
- FIDH is also a leader in BDS in France and at the UN.
International Association of Democratic Lawyers (IADL)
- IADL submitted a short brief with little original substantive argumentation. The first three pages summarizes IADL’s activities and positions regarding Israel and the ICC, and another three cite and repeat arguments made by the Prosecutor and pro-Palestinian scholars/activists who also submitted briefs.
- PCHR and the Palestinian Bar Association, both of which submitted amicus briefs, are IADL member organizations.
- IADL’s 2012 Gaza Declaration advocated for BDS against Israel, calling on states “to immediately put an end to any commercial transaction regarding weapons and military technology to and from Israel” and its members “to engage in promoting an economic, cultural and academic boycott of Israel.”
- A 1978 study by the CIA identified IADL as “one of the most useful communist front organizations at the service of the Soviet Communist Party.” According to Professor Alan Dershowitz, it “is anti-democratic to its core and supportive of terrorism and repression.”
International Commission of Jurists (ICJ)
- ICJ has two affiliates in “Palestinian Territory, Occupied” — Al-Haq and PCHR. Al-Haq’s Shawan Jabarin is a member of ICJ’s “Executive Committee,” (as noted above, Jabarin is also among the leaders of FIDH) and PCHR’s Raji Sourani is an “Honorary Member” of ICJ.
- ICJ is active in lobbying the United Nations, particularly at the Human Rights Council, promoting false, distorted, and unverifiable allegations against Israel.
Popular Conference for Palestinians Abroad
- Launched in Turkey in 2017; opposed by the Palestinian Authority as “a Hamas front.”
- Established the “Support Committee for the Boycott of Israel” in 2017, which is headed by Zaher Birawi, a Hamas activist.
- Has accused Israel of “ethnic cleansing,” “genocide,” and “crimes against humanity,” and has posted many articles in support of BDS.
MyAQSA Foundation https://www.icc-cpi.int/CourtRecords/CR2020_01020.PDF
- Malaysian NGO established to “create a network of smart partnership between relevant Non-Profit Organisations and the Government in service of the Muslim ummah domestically and internationally, with emphasis on Palestine.”
- In January 2018, MyAqsa held a conference titled “Jerusalem: The Nation’s Identity,” which discussed “New Ideas and Opinions for the Liberation of Jerusalem.”
- In January 2018, MyAQSA organized the “World Islamic Scholars Round Table Conference,” where it was decided that all Muslim countries are “urged to cut off any type of relations with Israel, particularly in terms of diplomatic and economic ties to pressure the country to liberate Palestine and the city of Jerusalem.”
- For more detail on this strategy, see NGO Monitor’s groundbreaking “Lawfare” monograph.
- On December 20, 2019, Israel’s Attorney General issued a briefing paper, outlining Israel’s position. As Israel is not a party to the ICC, it did not file Observations with the Court. The following ICC member states submitted Observations supporting Israel’s position: Austria, Australia, Brazil, Czech Republic, Germany, Hungary, and Uganda. Canada released a statement in February opposing ICC jurisdiction.
- The Court allowed victims to submit amicus briefs without first obtaining permission. The rules relating to victims participation are inherently vague. While victim participation is motivated by good intentions, the failure to clearly define their role and whether their participation prejudices the rights of criminal defendants, opens the Court to exploitation and abuse and damages its credibility.
- The dubious provenance of the CUNY publication is currently the subject of an investigation by the university.