CIJA Shares Observations Submitted in ICC Case Against Israeli Leaders

OBSERVATIONS (AMICUS CURIAE OBSERVATIONS) FROM THE CENTRE FOR ISRAEL AND JEWISH AFFAIRS PURSUANT TO RULE 103 OF THE RULES OF PROCEDURE AND EVIDENCE

In May, the Prosecutor of the International Criminal Court (ICC) sought arrest warrants against Israeli and Hamas leaders. The ICC granted the Centre for Israel and Jewish Affairs (CIJA) permission to submit amicus curiae observations on the Prosecution’s Article 58 Application for those arrest warrants. In the disappointing and condemnable absence of action by the Government of Canada, CIJA determined the organization would do so to represent and safeguard the interests of the Canadian Jewish community and the integrity of the international legal system in this critical international law matter.

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Executive Summary

CIJA argued that the ICC lacks jurisdiction over crimes allegedly committed in the "territory of the State of Palestine" and that the arrest warrants request against Israeli Prime Minister Benjamin Netanyahu and Israel’s Minister of Defense Yoav Gallant are pre-emptive, preclusive, and prejudicial.

These arguments were articulated around two main points. The Oslo Accords and the principles of complementarity and cooperation.

The Oslo Accords

• For Palestine to properly delegate criminal jurisdiction over the "situation in Palestine" to the ICC, it must first have the authority to prosecute Israeli nationals, an authority it does not possess.
• These agreements confirm that Palestinian jurisdiction is limited for Palestinians and non-Israelis in the West Bank (excluding Area C) and Gaza Strip.
• The Palestinians were not granted full criminal jurisdiction through the Accords, and certainly not criminal jurisdiction over Israeli nationals, thus they cannot delegate such jurisdiction to the ICC.
• The Palestinian Authority, therefore, lacks the authority to delegate criminal jurisdiction to the ICC under Article 12(2)(a) of the ICC Statute.

The Principles of Complementarity and Cooperation

• The Prosecutor’s approach contradicts the principles of complementarity and cooperation.
• Article 17 of the Rome Statute necessitates that a state be unwilling or unable to prosecute before the ICC steps in. Additionally, the article clarifies that unwillingness includes situations where "there has been an unjustified delay in the proceedings," among other criteria.
• The rapid issuance of arrest warrants against Israeli officials is premature and lacks thorough investigation.
• Israel’s independent judiciary and credible legal system should be given time to address allegations.
• In March 2021, the former Prosecutor, Fatou Bensouda, sent an Article 18 letter of notification to Israel. Given that the Prosecutor is now investigating an entirely new set of allegations, he should have sent new Article 18 notification letters to Israel and other States, which would have informed them of the shift in the investigation’s focus. Israel and other States were therefore not provided with an opportunity to assert Article 18 complementarity.
• Article 54 (3) promotes cooperation, which the Prosecutor bypassed, hindering evidence collection and dialogue.
• The Prosecutor's actions disrupted potential cooperation and improperly elevated Hamas leaders to the same moral status as Israeli officials.
• In comparison to the handling of other ICC cases inconsistencies in this case indicate a prejudicial approach towards Israel.
• The Prosecutor's actions risk politicizing the Court and undermining its credibility.

CIJA’s observations aim to assist the Pre-Trial Chamber I in addressing the jurisdictional and procedural issues in the Prosecutor’s request for the issuance of arrest warrants.

We believe that the ICC lacks jurisdiction to issue such a warrant against any Israeli official as Israel has the ability and willingness to investigate and prosecute, where applicable, crimes under its existing judicial system.

CIJA GRANTED LEAVE TO SUBMIT OBSERVATIONS IN ICC CASE AGAINST ISRAELI LEADERS

Jewish Federations’ Advocacy Agent Criticizes Ottawa for Not Requesting Leave to Intervene

Ottawa, ON – July 23, 2024 – Yesterday, the Centre for Israel and Jewish Affairs (CIJA) was granted leave to submit observations in the International Criminal Court (ICC) Prosecutor’s application to seek arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant on charges of war crimes in relation to Israel’s current war of self-defence against Hamas in Gaza.

“Aside from ICC Prosecutor Khan drawing an obscene moral equivalence between terrorists whose stated mission is to exterminate the Jewish People and eliminate Israel, and the leaders of a democratic nation engaged in a war of self-defence, the ICC has no jurisdiction over Israeli nationals according to the ICC statute itself, to international law principles, as well as pursuant to the Oslo Accords,” said Richard Marceau, Vice President, External Affairs and General Counsel, Centre for Israel and Jewish Affairs. 

Following the June 27 ruling by ICC judges to allow states and organizations to request leave to file amicus curiae (friend of the court) observations in the case, CIJA determined that since, regrettably, the Canadian government did not request to submit observations and provide submissions on the court’s jurisdiction – or lack thereof – the organization would do so on behalf of the Canadian Jewish community. 

“We were very disappointed that the Government of Canada did not strongly condemn nor, despite having done so in the past, act against this flagrant attempt to politicize the ICC,” said Marceau. “If Canada is as strong a supporter of the ICC as it contends to be, it should defend the integrity of the court by speaking out when its overreach poses a grave threat to the cause of justice and peace in international affairs.” 

Filed on July 11, CIJA’s request to submit observations focused on the complementarity principle, a core tenet of the ICC, which states that the Court must only act in cases where a state is unwilling or unable to genuinely carry out the investigation or prosecution. CIJA argues that Israel possesses a robust and independent judiciary, which precludes the need for ICC intervention.  

“Indeed, during the internal Israeli debate over judicial reforms, the Government of Canada criticized any attempt by Israel’s government to weaken its judiciary. To be consistent, the Government of Canada should have requested leave to intervene in support of Israel’s position that it has the necessary legal institutions to deal with the matters in the ICC Prosecutor’s application and hence, that the ICC does not have jurisdiction,” said Marceau. 

A copy of the Court decision granting CIJA’s request to submit observations can be found, here.

“As Israel wages a war of self-defence instigated by Hamas, Canada’s Jewish community has watched in shock as our government has taken positions that depart from those expected from an ally. 

“In the disappointing and condemnable absence of action by the Government of Canada, we remain steadfast in our commitment to represent and safeguard the interests of the Canadian Jewish community and the integrity of the international legal system in this critical international law matter.” 

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Additional Background 

• Press Release: Canada Must Reject ICC Assault on Israel 

About the Centre for Israel and Jewish Affairs

The Centre for Israel and Jewish Affairs (CIJA) is the advocacy agent of Jewish Federations of Canada-UIA, representing Jewish Federations across Canada. CIJA is a national, non-partisan, non-profit organization whose mission is to preserve and protect Jewish life in Canada through advocacy and to advance the public policy interests of Canada’s organized Jewish community.