ICC in the Hague
ICC in the HagueReuters

Legal arguments siding with Israel only barely met this week’s International Criminal Court (ICC) deadline of March 16, due to coronavirus-related limitations.

The ICC in The Hague, responding to a complaint by the Palestinian Authority, is accusing the State of Israel of war crimes. At least a dozen pro-Israel legal groups, all over the world, raced to prepare detailed arguments, extending over a maximum length of 30 pages per submission, as well as dozens of pages of appendices. Mattot Arim, an Israeli NGO, told Arutz Sheva of experts forced to carry out legal analysis under sub-optimal conditions -- due to coronavirus-related restrictions.

The ensuing technical problems almost had these jurists missing the March 16 deadline imposed for submission of legal arguments. However, the pro-Israel submissions were, eventually, filed timely - some only hours before midnight on the very last day.

Mattot Arim told Arutz Sheva that several states have, crucially, stepped up to side with Israel, including Australia, Austria, Brazil, the Czech Republic, Germany, Hungary, and Uganda. These states petitioned The Hague to file arguments in favor of Israel, and, as expected, received positive responses from the Hague, since the ICC is anxious to create an impression of impartiality. In addition to positions taken by states, arguments were also submitted by prominent jurists -- including former Canadian Minister of Justice Professor Irwin Cotler, and by non-governmental organizations.

The State of Israel itself, as well as the United States, have opted not to be members of the ICC’s founding treaty, so as not to be bound by ICC decisions. Therefore, the State of Israel, as well as the United States, did not submit arguments to the ICC this week - so as not to lend recognition to an organization considered subject to anti-Israel and anti-American pressure from the international community - much like the United Nations.

Levy Report-based settlement legality arguments submitted to The Hague

A legal argument infrequently made in international fora, but included in the Levy Report, finally found its way into arguments submitted to The Hague. The UKLFI (United Kingdom Lawyers for Israel) in conjunction with the International Legal Forum (ILF), Bnai Brith, Simon Wiesenthal Center (SWC) and Jerusalem Initiative filed a joint submission disputing the ICC’s jurisdiction -- including the argument that made a sensation when the Levy Report was issued in 2012. The Levy Report argument surprisingly states that the UN Charter, which is legally binding on all states, itself renders Jewish communities (“settlements”) in Judea and Samaria fully legal. The UN Charter’s crucial Article 80, also known as the “Jewish people's clause”, in fact even creates an actual legal imperative to "encourage" close Jewish settlement throughout Judea and Samaria, even referring specifically to state land.

This argumentation, being based on English-language source documents, has been well known in the pro-Israel legal community in the West for decades. It was however almost unknown in the Hebrew-speaking legal community in Israel itself. The strength of the argument, which greatly bolsters Israel's position of full legality of the entire resettlement enterprise, shocked the Israeli public when it came to light in 2012, in the Levy Report authored for the Government of Israel by a senior legal team chaired by the late Supreme Court Justice Edmond Levy. The Levy Report was published in Hebrew and was available via Internet to the entire Israeli public.

In recent months, the head of Israel’s legislative branch, Knesset Speaker Yuli Edelstein, gave the Levy Report argument another boost, referring to Article 80 in a letter rejecting the European Union’s settlement illegality allegations. The Knesset Speaker addressed his remarks to his European parliamentary counterparts in November last year - after the European Union decided to mark products, from Jewish communities only, in the Judea-Samaria region.

Israel’s Attorney General's Office also relied on the selfsame Article 80, in a statement posted on Internet in December 2019. However, the Attorney General's statement was not sent to the Hague -- to avoid any impression of granting any form of jurisdiction to the “Criminal Court” in any Mandatory territory governed by Israel. Thus, this week, eight years after the Levy Report was issued, the argument first made its quasi-official way to international legal fora.

Submissions filed in support of the Palestinian Authority too

According to Mattot Arim, many arguments have also been filed in support of the Palestinian Authority - by formerly United Nations-affiliated lawyers such as Richard Falk and William Schabas, as well as by the Arab League, and by the Organisation of Islamic Cooperation. Israel and legal teams friendly to Israel maintain that since Israel is not a member of the ICC treaty (“Rome statue”), the ICC lacks jurisdiction in the Land of Israel. However, according to the Palestinians, the Palestinian Authority is a state - and therefore, by virtue of this “state” having joined the Hague Tribunal – the ICC has jurisdiction over all of Judea, Samaria and Gaza. The pro-Israel rejoinder is that the Palestinian “Authority” was never and is not a state, according to accepted statehood standards (the "Montevideo Criteria"). Yet the ICC prosecutor in The Hague came out initially, in January, in favor of the Palestinian side, insisting that the Palestinian Authority be considered an actual state. The prosecutor laid the blame on Israel in this respect as well, saying that the Palestinians were unable to fulfill the Montevideo Criteria due to construction of settlements by Israel -- which she deemed an illegal act.