ICC Does It Again, and It’s Not Pretty – Discarding Established Law in Favor of Raw Politics to Go After Israelis


As we’ve pointed out before concerning the International Criminal Court (ICC) and its chief Prosecutor, both are highly susceptible to politics—often at the expense of “law” and the “rule of law” internationally. That happened again on Friday, February 5, 2021, when judges of Pre-Trial Chamber I of the ICC published an opinion finding that Palestine was a “state” for the purposes of the ICC, whose “borders” correspond to the armistice lines that separated the opposing Arab and Israeli military forces at the end of fighting in the 1948-49 Arab-Israeli War.

For quite some time, the ICC Prosecutor has been trying to figure out a way to haul Israeli nationals before the ICC to answer for alleged Israeli violations of the law of armed conflict and human rights law against Palestinians in the West Bank, east Jerusalem, and the Gaza Strip. Under the Rome Statute, the treaty that established the ICC, the only realistic way she would be able to do so is if “Palestine” is a State.

In her arguments before the judges, the Prosecutor urged the Pre-Trial Chamber to rule that Palestine was in fact a “state” whose “borders” corresponded to the 1949 armistice lines. Even as she did so, she was forced to openly acknowledge the following facts: 1) that “Palestine does not have full control over the Occupied Palestinian Territory and its borders are disputed,” 2) that “[t]he Palestinian Authority does not govern Gaza,” and 3) that “the question of Palestine’s Statehood under international law does not appear to have been definitively resolved.” She also admitted that Palestine does not possess the normal indicia of statehood.

Because the very facts she acknowledged cast grave doubt on the current existence (or even the possibility of existence) of a Palestinian “state” and should have outright torpedoed her request, the Prosecutor urged the judges to disregard the established definition of State under customary international law and instead consider Palestine to be a “state” for the strict purposes of the Rome Statute, thereby suggesting that, when it comes to Israel and Israelis, international law can be either ignored or distorted beyond recognition. In effect, she was arguing that “A” (Statehood) and “not A” (Lack of Statehood) be considered equivalent for purposes of the Rome Statute. Otherwise she could not proceed against the Israelis.

Accordingly, the Prosecutor was asking the chamber of judges to disregard the established legal definition of State under international law and instead fashion a more flexible political definition that would allow her to get around contrary law and do what she wanted. It is bad enough that a prosecutor, an official bound by law to pursue criminals in accordance with the law, would even suggest that clearly established, though inconvenient, law be disregarded just so she could proceed with criminal investigations (and possible prosecutions).

It is absolutely unforgivable that a panel of judges would acquiesce in doing so, but that appears to be what has occurred. Rather than independently determine whether the entity referred to as “Palestine” meets the legal requirements of statehood under international law, the judges simply accepted that Palestine was a “state” based on a 2019 U.N. General Assembly resolution that had changed the status of “Palestine” at the U.N. from “entity” with observer status to “non-member observer State.”

The ICC decision explicitly claims that the judges are not “endowed with the authority to challenge the validity of Resolution 67/19 that admitted Palestine as a non-member observer State and granted its eligibility to accede to the Statute.” Although it is undoubtedly true that ICC judges have no authority to “challenge the validity” of a United Nations General Assembly (UNGA) resolution, that does not justify the judges from failing to do their homework or being willfully blind to the fact that the UNGA simply lacks any authority to do what the judges claim it did.

The UNGA has no authority to create a state or recognize borders. In fact, the UNGA’s authority is quite limited according to the U.N. Charter which established the General Assembly. It is limited to discussing matters of concern, making recommendations, initiating studies, receiving and considering reports from other U.N. organs, and considering and approving the U.N. budget. Nowhere in that list is any authority whatsoever to create a “state” or designate its borders.

In fact, if the UNGA had even attempted to do what the ICC judges claim it in fact did, the UNGA resolution would be ultra vires and void ab initio. Because creating a state is wholly outside of its competence, for resolution 67/19 to have any validity at all, the UNGA resolution must simply be an internal administrative decision which henceforth directed how the Palestinian delegation was to be treated at the U.N.—to wit, as if it were a state, not that it was a state.

Accordingly, there is no foundation whatsoever for the critical determination upon which the judges’ decision rests. By relying on resolution 67/19 as legally establishing that a state of Palestine exists, the ICC judges rest their decision on sinking sand, on a legal nullity. Their entire argument collapses because they refused to do due diligence to independently establish whether Palestine meets the international legal criteria for statehood, which it does not.

Nonetheless, despite the foregoing facts, the Prosecutor intends to treat the decision as valid and proceed accordingly. That will cause considerable mischief internationally and, given the serious opposition to the ICC’s blatant disregard of contrary international law to obtain jurisdiction over non-consenting States’ nationals, will invite considerable pushback from non-member States who consider the ICC’s actions to be unlawful per se.

To date, pushback from the United States has been significant as well. Presidents of both political parties have severely criticized the ICC, and Congress has even enacted legislation aimed at the ICC to protect U.S. Service Members from all attempts by the Prosecutor to ensnare American nationals in the ICC’s jurisdictional web (which, by the way, the Prosecutor is already trying to do with respect to alleged incidents in Afghanistan, allegations that Jay Sekulow and the ACLJ’s legal team personally opposed before the five-judge ICC Appeals Chamber).

The ICC is a political court that is running amok over customary international law that it finds inconvenient. We at the ACLJ will remain vigilant to oppose the ICC and its Prosecutor whenever they exceed their authority against United States nationals as well as the nationals of our ally, the State of Israel, a country whose compliance with international law is unrivaled in the community of nations. In that light, it is especially egregious that the Prosecutor has set her sights on Israel.

Please continue to stand with the ACLJ as we stand for U.S. and Israeli soldiers and against an illegitimate international court that appears ready to use any excuse and any means to attack the soldiers of liberal western democratic States, States already dedicated to the rule of law and to doing the right thing and complying with the applicable requirements of international law. We can do no less.

Robert W. “Skip” Ash is a Senior Counsel at the ACLJ and at the ECLJ. Ash heads the ACLJ’s national security practice. As such, he deals daily with legal issues concerning Believers in the U.S. Armed Forces, with issues regarding the Law of Armed Conflict worldwide, with issues before the International Criminal Court, with issues before the United Nations and its agencies, and with issues before other international courts in Europe. Ash is a graduate of the U.S. Military Academy, who served 22 years on active duty as a U.S. Army officer. His service included serving as NATO desk officer in the War Plans division of the Army Staff as well as a military strategist for the Secretary of Defense in the Office of the Assistant Secretary of Defense for Strategy and Plans in the Pentagon. Ash is also one of the founders of the Centre for the Study of Law & Public Policy at Oxford. He currently serves as Secretary of the Centre at Oxford. A graduate of Regent University School of Law, Ash has also served as a member of the faculties of the School of Law and the Robertson School of Government at Regent University where he taught courses on national security law, public international law, comparative law, First Amendment law, business associations, and legal research and writing.

Used with the permission of the American Center for Law and Justice.