Fall 2023 No.70 הארגון הבינלאומי של עורכי-דין ומשפטנים יהודים (ע״ר)
The International Association of Jewish Lawyers and Jurists Honorary President: Judge Hadassa Ben-Itto z”l (Israel) President Emeritus: Irit Kohn (Israel) Lifetime Member: Irwin Cotler, Prof. (Canada) Honorary Vice Presidents: Oreste Bisazza Terracini, Dr. (Italy), Joseph Roubache z”l (France) Board of Governors All members of the Executive Committee are members of the Board of Governors. In December 2023, IJL members unanimously re-elected Meir Linzen as President of the IJL. Also, a new Executive Committee was elected, as well as a Board of Governors. Executive Committee President Meir Linzen (Israel) Deputy President Daniel Reisner (Israel) Vice President and Coordinator for International Organizations Pnina Sharvit Baruch (Israel) Vice President and Secretary General Rachel Levitan (Israel) Vice President and Treasurer Avraham (Avi) Doron (Israel) Vice Presidents Robert Garson (USA) Marcos Arnoldo Grabivker (Argentina) Maurizio Ruben (Italy) Chief Executive Officer Hila Kugler Ramot (Israel) Head of the Legal Center for Combating Antisemitism Avraham Yishai (Israel) Representatives to the U.N. in Geneva (UNOG) Pnina Sharvit Baruch (Israel) Hila Kugler Ramot (Israel) Representatives to U.N. Headquarters in New York Pnina Sharvit Baruch (Israel) Hila Kugler Ramot (Israel) Regina Tapoohi (USA) Richard Horowitz (USA) Mark Speiser (USA) Representative to the European Parliament Pascal Markowicz (France) Meir Linzen (Israel) Daniel Reisner (Israel) Pnina Sharvit Baruch (Israel) Rachel Levitan (Israel) Avraham (Avi) Doron (Israel) Marcos Arnoldo Grabivker (Argentina) Maurizio Ruben (Italy) Robert Garson (USA) Alan Sacks (Israel) Aleksandra Gliszczynska-Grabias (Poland) Alyza D. Lewin (USA) Amos Shapira, Prof. (Israel) Avraham Yishai (Israel) Axel Freiherr von dem Bussche, Dr. (Germany) Baruch Katzman (Israel) Calev Myers (Israel) Carlos Schlesinger (Brazil) Dalia Tal (Israel) Dan Roskis (France) Daniel Benko (Croatia) David Benjamin (Israel) David Pardes (Belgium) Edna Kaplan-Hagler, Judge (Ret.) Dr. (Israel) Elyakim Rubinstein, Justice Prof. (Israel) Ethia Simha (Israel) Graham ZelIick, Prof. (UK) Hernan Najenson (Argentina) Hila Kugler Ramot (Israel) Irit Kohn (Israel) Isaac (Tzachi) Shragay (Israel) Jacques Cohen (France) Jeremy D. Margolis (USA) Jimena Bronfman (Chile) Jonathan David (Israel) Jonathan Lux (UK) Julia Andras (Austria) Maria Canals De-Cediel, Dr. (Switzerland) Michael H. Traison (USA) Michael Kempinski (Israel) Nathan Gelbart (Germany) Noemi Gal-Or, Dr. (Canada) Olaf Ossmann (Switzerland) Pascal Markowicz (France) Regina Tapoohi (USA) Richard Horowitz (USA) Ronit Gidron-Zemach (Israel) Roy Schondorf, Dr. (Israel) Ruben Pescara (Italy) Sarah B. Biser (USA) Stephen C. Rothman, Judge (Australia) Stephen R. Greenwald (USA) Suzanne Wolfe-Martin (Malta)
Fall 2023 1 JUSTICE is published by The International Association of Jewish Lawyers and Jurists (IJL) 10 Daniel Frisch St. Tel Aviv 6473111, Israel Tel: +972 3 691 0673 Fax: +972 3 695 3855 office@ijl.org www.ijl.org © Copyright 2023 by IJL ISSN 0793-176X JUSTICE is published for members and friends of the International Association of Jewish Lawyers and Jurists. Opinions expressed in JUSTICE are those of their authors and do not necessarily reflect the views of JUSTICE or the International Association of Jewish Lawyers and Jurists. The accuracy of articles appearing in JUSTICE is the sole responsibility of their authors. Articles in English are welcome but should be preceded by a query to the IJL Advisory Board at office@ijl.org. Back issues of JUSTICE are available at www.ijl.org. JUSTICE No. 70, Fall 2023 Editor Mala Tabory, Dr. Special Advisor Irit Kohn, Adv. Advisory Editor Alan D. Stephens Academic Advisory Board Michael Bazyler, Prof. Noemi Gal-Or, Dr. Oren Gross, Prof. Moshe Hirsch, Prof. Deborah Housen-Couriel, Adv. Robert Katz, Prof. Michla Pomerance, Prof. Arie Reich, Prof. Nicholas Rostow, Prof. Robbie Sabel, Prof. Amos Shapira, Prof. Malcolm N. Shaw, Prof. Joseph H. Weiler, Prof. Legal Editorial Staff Jennifer Farrell, Esq. Gavriella Lazarus Shani Birenbaum Graphic Design Climax Design Studio Ltd. www.climax-design.co.il | 03-7516747 Cover Photo Credits Bottom left: Burnt house with child's toy truck, Kibbutz Re'im. Yaakov Shainberg Bottom right: Butterfly installation at Hostage Square. Artist: Tal Bracha Curator: Sigalit Zilkha-Niewodowki Contents President’s Message Meir Linzen 2 Addresses In the Shadow and Aftermath of October 7 Justice Elyakim Rubinstein 4 The International Criminal Court: Twenty Years of its Existence Claus Kreß 7 International Law Tailor-Made for Israel Robbie Sabel 11 Articles The United Nations and International Law in the Hamas-Israel War Matthijs de Blois 15 Advisory Opinion Request to the ICJ about Israel: Submission Goals David Matas 21 How October 7 Should Inform Israel’s Clash at the International Court of Justice Richard D. Heideman and Joseph H. Tipograph 24 European Law and the Protection of Rights of the Jewish People Aleksandra Gliszczynska-Grabias 30 The Resurgence of Antisemitism and Anti-Israel Sentiment in the Arab and Islamic World Eyal Zisser 34 Statement If Everything is Genocide, Nothing is Genocide IJL Statement in response to South Africa’s ICJ Application Accusing Israel of Genocide 40
2 No. 70 JUSTICE ctober 7, 2023 is a day that will go down in infamy as one of the most terrible dates in the history of the State of Israel and the Jewish People. The atrocities committed by Hamas-led terrorists ‒ including murder, rape, torture, kidnapping, wounding, desecration of bodies, the burning of people and their homes, represent one of the worst acts of terror in the modern era. In their severity, these events recall the pogroms of Eastern Europe and the horrors of the Holocaust. During the perpetration of the atrocities, more than 1,200 people were slaughtered and more than 250 kidnapped and taken hostage ‒ men, women, children and elderly persons. We bore witness to some of the worst war crimes and crimes against humanity. Immediately following the events of October 7, Israel declared a state of war in order to eliminate the military capabilities and political regime of the Hamas terror organization, and to free those who were kidnapped and taken hostage. The Gaza Strip is one of the most densely populated areas in the world. More than two million people live in an area of only a few hundred square kilometers. Hamas uses the local population as a human shield. There is almost no public institution (hospital, school, mosque) that does not serve as a military installation or for military purposes. Many residential homes are also used for these purposes. The suffering of Palestinian civilians in Gaza cannot be ignored. The tragic casualty toll and scenes of massive destruction that are seen in Gaza may appear both incomprehensible and disproportionate, unless we look at the facts and see the undeniable direct intertwining between military infrastructure and civilian population deliberately made by Hamas and the other terrorist organizations in Gaza. Israel’s actions since October 7, 2023, are not acts of vengeance for the events of that infamous day, but rather, clearly and unequivocally, acts of self-defense. Meanwhile, in parallel to the events of October 7, Iran’s proxy organizations, foremost among them Hezbollah in Lebanon, as well as pro-Iranian militias in Syria and Iraq, the Houthis in Yemen, and even Iran itself, are engaging in hostile activities against Israel. Perhaps October 7 will open the eyes of the world to the fact that Iran and its proxies are committed and determined to destroy the State of Israel, the state of the Jewish People. There is no doubt that the purpose behind these events is the genocide of the Jewish People. There is a shameful level of cynicism in the “inversion” made by those who see the acts of self-defense of the State of Israel as acts of genocide against the Palestinians. The events of October 7 and the war in Gaza have stirred up a massive and repugnant wave of antisemitism around the world. The masks are off, and the distinction between the State of Israel and Jews has been blurred. Even though the State of Israel failed in protecting its citizens on October 7, the Jews of the Diaspora still see Israel as a place of refuge against present or future persecution. I hope that the enlightened world, and enlightened individuals, will fight against any attempt to undermine the legitimacy of the State of Israel as the state of the Jewish People. President’s Message O Meir Linzen Photo: Ami Erlich
3 Fall 2023 Due to the war, our Conference, which was planned to focus on Freedom of Religion, has been postponed until later in the year. In all likelihood, we will then focus on the pressing issues that are currently on the public agenda. During the course of the war, the IJL held elections for our 18th Congress, and I was elected to an additional term as President of the Association. I am grateful for the renewed confidence placed in me and in the members of our Executive and Board, and I hope that we will justify your trust. Our relevance as the leading legal organization in the Jewish world is greater than ever. We must act through all legal means available against those who commit such heinous crimes and to promote the safe return of all the hostages still held captive. We must fight attempts to undermine the legitimacy of the State of Israel and its right to defend itself and its citizens. We must fight by all legal means the immense and appalling wave of antisemitism that we are currently witnessing. I hope and pray that the civil New Year will usher in a better year than the last, a year of peace and revival for the Jewish People, for the people of Israel, and for all humanity. n January 1, 2024
4 No. 70 JUSTICE am pleased to be able to return to activity in the International Association of Jewish Lawyers and Jurists (now the “IJL”), an organization in which I had the privilege of working many years ago. I wish the organization and its President, Adv. Meir Linzen, success in the important tasks called for in this era. We are in a difficult and distressing time for both Israel and Jews in other countries. The challenges of the times are known to all, and the many lives lost since October 7, among both civilians and soldiers, are an inexhaustible source of sadness. This immeasurable grief is not solely borne by the many bereaved families which, of course, bear the principal burden of grief, but for each of us, Israeli, Jew, and indeed every decent person. Israel is caught in a war that I have no doubt any country would resort to after the massacre of some 1,200 citizens, along with kidnapping, rape and looting. The agony of our kidnapped persons is so deeply on our minds. I will briefly discuss three points: the war on Hamas, the struggle against antisemitism, and the fight for peace and relations with the Arabs of Israel. The War with Hamas: Legal Challenges As scrupulous jurists, we often say that there are two sides to every coin. But there is no ambivalence about this war. It is a war justified like no other, both in terms of self-defense and in every other legal aspect. To the best of my knowledge, despite the difficult conditions, the IDF is making an effort, with the aid of the Military Judge Advocate General’s office, to operate in accordance with the laws of war. Dealing with this issue in the international arena is complex, and extends over a variety of matters, and falls within the expertise of Col. (Res.) Pnina Sharvit Baruch, Vice President of the IJL. Here, I will focus only on the secondary challenge created by the war, whose main goals are familiar: defeat of Hamas, release of those kidnapped, and bringing general security to Israelis in the border areas. This challenge concerns the handling of the many terrorists who were captured by the IDF and security forces over the course of the war. They are presently detained as illegal combatants, in accordance with a law regulating this category, as they are not entitled to be considered prisoners of war. What is the offense for which they could be prosecuted, is it the crime of genocide? In which legal forum would this matter be addressed ‒ the civilian courts or a military court re-established under the Defense (Emergency) Regulations (1945)? What evidence has been collected that may be used in the trials, if a decision is made to go to trial? These and other questions are on the desk of the Attorney General of Israel and the Judge Advocate General (which are both, for the first time, posts held by women). It is safe to assume that the IJL will also have to consider these matters in due course. By the way, during my time as Attorney General, I insisted – in the face of opposing views – on bringing the terrorist leader, Marwan Barghouti, to trial in the civil District Court, rather than a military court, after his arrest in 2002. I have great respect for the military courts (I myself served as a judge in the military reserve), but I thought that terrorist leaders should be tried in civil courts, for public visibility reasons. Barghouti was sentenced to five life sentences and another 40 years for his role in multiple murders and acts of terrorism. At this point in time, I will not address the difficult dilemma once again before us regarding the exchange of prisoners convicted for acts of terrorism for our kidnapped civilians and soldiers – to whom we have a duty to bring home. On Antisemitism Antisemitism may be traced back in history to the biblical days of Pharaoh and Haman. There is no rational explanation for its existence, given the tiny size of the Jewish people, and it seems that it cannot be completely eradicated. Back in the 1930s, Rabbi In the Shadow and Aftermath of October 7* I Justice Elyakim Rubinstein * This is a slightly edited version of an address at the IJL Board of Governors meeting, December 12, 2023. Some of the comments were published in Hebrew: “We Are No One’s Punching Bag,” YEDIOTH AHARONOT (Sept. 13, 2023).
5 Fall 2023 Menachem Zemba, who later perished in the Warsaw ghetto, explained the words of Rabbi Shimon bar Yochai, “It is a known halacha that Esav hates Jacob,” and described antisemitism as a phenomenon without explanation. Midrash Lamentations Rabbah (Chapter 3, p. 200) tells about the Roman emperor Hadrianus, who suppressed the Bar Kochba rebellion, was venerated by the Romans, but who is described in our tradition as “the one whose bones should be crushed.” When a Jew passed in front of him and greeted him, Hadrianus ordered him to be killed. When another Jew passed by and saw what happened to the first, he did not greet him; the emperor also ordered him to be killed. His counselors asked him: we do not understand your actions, both the one who greeted you and the one who did not were killed. He answered them: “what, you want to tell me how I should kill my enemies?” Put simply, he had a policy to kill Jews, what did it matter what they did or did not say? One hundred and forty years ago, the Zionist leader Nahum Sokolow wrote the book Eternal Hatred for the Eternal People (Hebrew), the name of which bears witness to such hatred. Nevertheless, we must not give up. The struggle is necessary, even if it achieves only partial results. It is also necessary in the wake of modern exhibitions of antisemitism that operate under the guise of reasonableness and intellectualism. For example, I watched the horror show of the three presidents of the prestigious universities: Harvard University, University of Pennsylvania, and the Massachusetts Institute of Technology (whose president is Jewish). Their failure to simply say that on a basic moral level, calling for genocide against Jews is against their university’s regulations and codes of conduct, was shocking to me. Apparently, on the advice of lawyers, whether out of fear of the “progressives” in the universities or out of fear of the donors from the Arab world, the presidents shamefully twisted and turned their logic and stated that the answer “is context dependent.” There is no context in the world – whatever it may be – in which it is possible to believe that calling for genocide could be sanctioned. Viewing the testimonies given by the university presidents before Congress in Washington, D.C., I asked myself if they knew the meaning of the term “genocide.” Based on the forced tone of their words, I had the impression that they “understand” that the individual Jew on campus should not be subjected to heavy harassment. But genocide is much broader than that – it is the extermination of a people. The Jewish jurist Raphael Lemkin, who was a Holocaust refugee from Poland, coined the term during the Holocaust and knocked on every possible door lobbying in support of a Sisyphean task: to convince his listeners of the need for an international convention to combat genocide. This week, December 9, 2023, commemorates the 75th anniversary of the adoption of the Genocide Convention by the United Nations. We have already mentioned a fear of “progressive” circles. Previously, this term signified tangible progress, advancements, and developments. Today, it conceals uncontrolled hostility, ignorance, and unexplained hatred for bodies, personalities, and institutions that supposedly make up a strong ruling establishment and elite class that harm the weak. Harassment of Jews (who are supposedly part of the elite and the “powerful”) is the result of this conduct and rationale, which is built on old foundations of “classical” antisemitism. The words of the university presidents pour fuel on a fire ignited by antisemites who have raised their heads in the same way as haters of Israel have in every generation, and exploit the Palestinian struggle as a platform for refining their antisemitism. This includes the lie that Israel has committed genocide against Palestinians in Gaza, something which is completely untrue; Israel is now dragged to The Hague International Court of Justice by South Africa. In the past, when I served as the Government Secretary from 1986-1994 in the Yitzhak Shamir and Yitzhak Rabin governments, I was the Chairman of the Inter-Ministerial Forum for Monitoring the Phenomena of Antisemitism, which I initiated in 1987. The editor of JUSTICE, Dr. Mala Tabory was my good colleague on behalf of “Nativ,” the governmental body that deals with the Jews of the former Soviet Union and now the Commonwealth of Independent States. But Shimon Peres, the Foreign Minister at the time, always an optimist, said to me, “Ely, governments should deal with the present and the future, antisemitism is a thing of the past, why deal with it?” Subsequently, he changed his mind. In those years, we identified three forms of combat: first, the political-diplomatic route, whether through classic diplomacy vis-à-vis governments or public diplomacy, which used to be called hasbara
6 No. 70 JUSTICE (“advocacy” or “explanation”). The second was the legal means; a war through both legislation (of which the Tel Aviv University project headed by Prof. Dina Porat was in charge) and by advocating for court rulings against the phenomena of antisemitism and the enforcement of such rulings. The third and more long-term method is the educational one: we learned firsthand how injecting antisemitic poison from a young age spurs wild growth later. In recent decades, a new element has joined the mix and affected all of its predecessors: the social media networks. Within social media, there are both the antisemitic contents, and those who promote it, which must be fought, no matter how hard that war is. Moreover, quite a few of the “legal” attacks in the international arena are tainted by antisemitism. In my opinion, the guiding line in all of these should be boldness and assertiveness, and the IJL has a role to play among the countries of the world: “We, the Jews and Israel, are not anyone’s punching bag – whoever seeks to punch you – punch him first.” As mentioned, it seems that antisemitism cannot be rooted out, because of the depth of its malignant roots in cultures and religions. But it must remain in the sewers and its flag bearers should be ashamed. In Israel we must work hand in hand with our brothers and sisters in the Diaspora, and decent non-Jews. This is not impossible, but patience and perseverance are necessary; Jews too have human rights. The Struggle for Peace and the Arabs in Israel Among the IJL’s goals should be the reminder that one should not forget the hope of peace even on gloomy days. Such messages can help the fighter on the front know that in Jerusalem there are those who think of better days than these, even if at present they may seem far away. The fight against Hamas does not contradict the hope for peace, and it may even strengthen it. To that end, a victory over Hamas may strengthen our relationships with Arab countries that made peace with us yet suffer from Islamic fundamentalism themselves, even if these countries publicly criticize Israel. With its Declaration of Independence, Israel extended a “hand of peace and good neighborliness” to our neighbors and proved this by making peace with Egypt and Jordan. This sentiment also exists in agreements with Lebanon and the Palestinians even if they completely failed or only partially succeeded. I was at Camp David in 1978, and I remember how Menachem Begin agonized over the issue of the Sinai settlements, until he finally decided to bring before the Knesset the decision to dismantle them – for the sake of peace. Nonetheless, equally we cannot err on the side of illusions. In his 1956 eulogy for Roy Rotberg, a resident of Nahal Oz who was murdered by terrorists from Gaza, Moshe Dayan, who was Chief of Staff at the time, said that “The longing for peace deafened him and he did not hear the sound of murder waiting in ambush.” The minorities in Israel make up over 20 percent of the country’s citizens and many of them bear the burden of fighting. This is particularly true among Druze and Circassians, but it also occurs among Muslims and Christians. I visited the families of two Druze lieutenant colonels who fell in the current war, Salman Habka and Alim Saad, in their village in the Galilee; my heart overflowed with Israeli pride. Many Israeli Arabs make up a significant part of our medical establishment and stand shoulder to shoulder in treating all the wounded. Without ignoring problematic phenomena, we must strengthen the effort to achieve equality for minorities mentioned in the Declaration of Independence, for the benefit of all. In the past I joined several esteemed professors and a Druze Brigadier General in a proposal to amend Basic Law: Israel, the Nation-State of the Jewish People, by addressing civil equality without harming the core of the Basic Law which affirms the national Jewish role of Israel. This effort unfortunately failed, but perhaps its time will come. In the meantime, let us all wish that the war will come to a victorious end, that the kidnapped hostages will return home, that the wounded will recover, and we will add a word of comfort and encouragement to the families of the fallen: that the unity with which they fought should be our legacy. n Justice Professor Elyakim Rubinstein retired in 2017 from his position as Deputy President of the Israeli Supreme Court. Prior to that, he served as Legal Advisor to the Ministries of Foreign Affairs and Defense, Government Secretary and Attorney General. He was involved in peace negotiations with all of Israel’s neighbors, including the Camp David Accords and the Peace Treaty with Egypt. He chaired the Israeli delegation to the Treaty of Peace Negotiations with Jordan. He is an associate professor in public policy and political science at the Hebrew University in Jerusalem. In 2023, he was elected to the IJL Board of Governors.
7 Fall 2023 t is an immense privilege for a German scholar to speak at the Hebrew University in Jerusalem. This is particularly so in the case of an invitation from an institute named after the eminent Jewish jurist, Jacob Robinson, and devoted to the preservation of his legacy. The legacy of Jacob Robinson is intimately connected with unspeakable and unimaginable crimes committed by Germans against Jews and the Jewish people. I am deeply appreciative of the special invitation by the Jacob Robinson Institute to appear before you. I have chosen to look at the International Criminal Court (also known as the “ICC”) after twenty years of its existence. I am aware of the many legal and political controversies surrounding the International Criminal Court – something which is true for the situation of Palestine, but also beyond. We cannot exclude critical issues from scholarly exchange just because such an exchange is likely to spark controversies. I present here reflections on the first twenty years of existence of the International Criminal Court. I. Difficult Birth In Rome, on the night of July 17, 1998, it proved necessary for the diplomats to stop the diplomatic clock. At the end of five weeks of intensive negotiations, the creation of the first permanent international criminal court in legal history was hanging by a thread. The United States insisted throughout that the officials of States not party to the Rome Statute be categorically excluded from the Court’s jurisdiction. The final compromise package did not comply with this demand, and this prompted the United States to put the draft of the Rome Statute (or the “Statute”) – the document that created the International Criminal Court – to a vote. When in the very early hours of July 18, 1998, the lights on the large board in the main conference room revealed an overwhelming majority in favor of the Statute, thunderous applause erupted among most of the completely exhausted negotiators and members of civil society. The tough struggle about the Court’s jurisdictional regime made one thing abundantly clear: the International Criminal Court would have to sail in rough waters. The reason for this was – and remains – obvious: even today, genocide, crimes against humanity, war crimes, and crimes of aggression are frequently committed by the highest organs of States. It is hence inevitable that a court entrusted with the mandate to adjudicate such crimes will attract the rage of the most powerful actors and their political allies. II. Magic of the Beginning Initially, it felt like a honeymoon. The first 60 ratifications were deposited at such high speed that the Statute of the ICC entered into force on July 1, 2002. Luis Moreno Ocampo, the Court’s first Prosecutor, made sure that the judicial newcomer had a harmonious appearance on the world stage. He refrained from acting upon the suspicion that British soldiers could have committed war crimes in Iraq. Instead, in the first two situations presented before the Court, Prosecutor Moreno Ocampo chose to act in smooth concert with the governments concerned. The Democratic Republic of the Congo and Uganda had The International Criminal Court: Twenty Years of its Existence* I Claus Kreß* * This is an edited version of a lecture delivered on January 4, 2023, at the Jacob Robinson Institute for the history of individual and collective rights of The Hebrew University in Jerusalem. An initial version of the text was published in German under the title “Gigant ohne Glieder. Der Internationale Strafgerichtshof muss weiter reformiert werden,” in FRANKFURTER ALLGEMEINE ZEITUNG, 28 July 2022, p. 6. A more elaborate and slightly updated version was published under the title “Der Internationale Strafgerichtshof nach 20 Jahren,” in P. B. Donath et al. (eds.), DER SCHUTZ DES INDIVIDUUMS DURCH DAS RECHT. FESTSCHRIFT FÜR RAINER HOFMANN ZUM 70. GEBURTSTAG (Springer: Berlin, Heidelberg, 2023), pp. 103-113. The following issue of JUSTICE (also devoted to October 7 as the legal issues evolve) will feature an article based on the reflections by Prof. Kreß on the conflict, as broadcast on Germany’s national radio.
8 No. 70 JUSTICE requested the Prosecutor to become active and, in both situations, the Prosecutor only went after the armed opponents – both times fulfilling the hope of the government in place. In 2005, China, Russia, and the United States all refrained from vetoing a resolution by which the UN Security Council would refer atrocities allegedly committed in the Sudanese province of Darfur to the ICC. This was tantamount to the implicit recognition of the ICC’s existence by the three permanent Council members that were not Parties to the Statute. III. Storm Clouds The Security Council’s Sudan mandate marked the peak of the ICC’s meteoric rise in international affairs. The Sudan referral, however, sowed the seeds of the end of the honeymoon. Importantly, the central suspicion in the Sudan situation was not about crimes committed by rebellious non-state actors. Rather, and for the first time, the Court’s core mission was at stake: the supra-national investigation into allegedly State-sponsored criminality. In 2009, the ICC issued an arrest warrant against the sitting Head of Sudan, Omar Hassan Ahmad al-Bashir. Shortly afterwards, proceedings commenced against the thenacting President of Kenya, Uhuru Kenyatta. Quite a few African governments, having been court-friendly until that moment, now chose to attack the ICC and to denounce it as a neocolonial instrument. Sudan categorically refused to cooperate with the Court, and in Kenya, the Court’s work met with grave interference. In the absence of sufficient evidence, the proceedings against Kenyatta had to be terminated. Al-Bashir, who is now in custody in Sudan, was able to freely enter and leave several States that were parties to the ICC Statute, although those States were under a legal duty to arrest al-Bashir and to surrender him to The Hague. Despite this, the ICC received no backing from the UN Security Council. These heavy setbacks brought the Court’s structural vulnerability to light for the world to see. The ICC’s core ambition is bold indeed: to act in the interest of the international community against state organs if they are under suspicion of having committed international crimes. When it comes to implementing this benign mandate, however, the Court looks like a small supra-national island emerging from a vast and deep ocean of nations. In more prosaic terms, to carry out its vertical mandate, the ICC, in the absence of vertical enforcement power, must operate within an essentially horizontal structure where the principle of State consent remains its key currency. Antonio Cassese, first President of the International Tribunal for the former Yugoslavia, called his tribunal “a giant without limbs.” This metaphor is even more appropriate with respect to the ICC. IV. Tempest In 2012, the second Prosecutor of the Court, Fatou Bensouda, took office. During her tenure, the situation worsened for the Court. One main reason for this is that Prosecutor Bensouda went beyond her predecessor’s course of action in one crucial respect: on a number of occasions, and each time with judicial concurrence, she decided to exercise the Court’s jurisdiction over nationals of non-States Parties. In the Situation of Afghanistan, Bensouda opened an investigation which included allegations of war crimes against soldiers and secret service members of the United States. In the Situation of Palestine, apart from allegations in connection with the 2014 Gaza war, the Prosecutor decided to investigate Israeli settlements in occupied territories which are widely considered to be contrary to international law. At the time, Israel’s Prime Minister Benjamin Netanyahu spoke of “pure antisemitism.” The Trump administration went beyond strong rhetoric and placed the ICC at the same level as transnational terrorist organizations. On that basis, Prosecutor Bensouda was subjected to financial sanctions. The Situation of Palestine provides a useful illustration of the inevitability by which the Court comes under political fire. The legal issue, which is central to the Court’s jurisdiction, is extremely complex and controversial – namely whether Palestine is a State, be it generally or at least for the specific purposes of the Rome Statute’s jurisdictional regime. One can imagine that the Court would have been confronted with allegations of “neocolonialism” had it reached an opposite decision. During that difficult time, the Court’s situation was not aided by the fact that much of the support which States Parties held for the Court remained rather lukewarm. Take Germany, my own country, by way of example. When faced with complex questions of jurisdiction, Germany usually accepts that the final word (the “KompetenzKompetenz”) lies with the competent international judges. In the Situation of Palestine, however, the then-German Foreign Minister Heiko Maas left it with the observation that Germany disagrees with the Pre-Trial Chamber’s decision. Also, since 2015, only Palestine, El Salvador, and Kiribati acceded to the ICC Statute, while Burundi and the Philippines have withdrawn. For a while, the number of States Parties to the ICC Statute had not gone beyond 123. Without doubt, the imperfect cooperation by States, the complexity of international criminal proceedings, and the novelty of significant parts of the
9 Fall 2023 Court’s procedural law, all add to the formidable challenges facing the Court. There is more to the story. Since the first Prosecutor’s term of office, the Court has been experiencing superfluous internal quarrels. There have even been signs that charges were brought in undue haste more than once. The ICC could thus not avoid the question of whether its limited output after almost two decades of existence was perhaps also due to certain homemade problems. Against this background, the prevailing mood vis-à-vis the Court underwent a significant change compared with the honeymoon phase: increasingly often, there was talk of a crisis or of the Court having arrived at a crossroads. At times, the pendulum swung a bit too heavily towards a sense of crisis and many lost sight of the fact that the ICC, which was still in an early stage of its existence, had already made a number of significant contributions to the consolidation of international criminal law. Consider, for example, the law against the abuse of children for war purposes, the law against the violation of reproductive rights, and the law against the destruction of cultural property. V. Weather Lights And then came February 24, 2022. At the end of her term in 2021, Fatou Bensouda left a file for her successor, Karim Khan, resulting from her preliminary investigation which enabled the opening of a formal investigation into the Situation of Ukraine. It is telling that Prosecutor Bensouda left it to her successor to decide whether to make this Situation one of his priorities, even in light of the Court’s budgetary restraints. It is likely that President Putin’s escalation of Russia’s violence against Ukraine to the extent that it became an outright war of aggression, would by itself have left the new Prosecutor with no choice other than to act. Then, all of a sudden, the States Parties rediscovered the purpose of the Court. On February 28, 2022, Prosecutor Khan confirmed that he would seek authorization from the Pre-Trial Chamber to open an investigation into the Situation of Ukraine. In doing so, he underlined that an ICC State Party’s referral of the Situation to the Office would allow for investigations to begin without delay. Only 48 hours after this statement, 39 states collectively responded, referring the situation to the Prosecutor and allowing him to immediately open an active investigation. Currently, a total of 43 States Parties have referred the Situation of Ukraine to the ICC, representing more than one third of all parties to the Statute. It is of note that, with respect to events unfolding since February 24, 2022, the opening of the investigation by Prosecutor Khan was done in parallel to national investigations, not only in Ukraine. This revitalization of support for the Court’s work is particularly striking considering that the Court’s investigative activity in the Situation of Ukraine is essentially directed against nationals of a non-State Party. In the skeptical years before, one repeatedly heard that States Parties should conceive of themselves as a “club of likeminded States” which should better confine their appetite for international criminal justice among themselves. With the Situation of Ukraine, however, the Court’s original mission has powerfully resurfaced. The establishment of the first permanent international criminal court in legal history, vested by its institutional design with a credible universal orientation, was now entrusted with the mission of reconfirming core rules of the international legal order in case of violation and to provide victims of grave offenses with some measure of relief. Interestingly, the United States has repeatedly welcomed the Court’s activity in the Situation of Ukraine. Yet if the United States wishes to act consistently, this can only mean that it is willing to reconsider its opposition to the Court exercising jurisdiction over nationals of non-State Parties. VI. Lightning None of the aforementioned developments give reason for exuberance or even nonchalance. States Parties must not only provide the ICC with a sufficient budget but also insist on the highest professional standards for selecting judges. In addition, a rigorously professional spirit within the Court’s judiciary will help the Court work through the long list of recommendations compiled by a group of independent experts and submitted to improve the Court’s conduct of proceedings. Irrespective of what is already a remarkable jurisprudential acquis (inevitable imperfections notwithstanding), the ICC’s judiciary will continue to be confronted with demanding challenges in the foreseeable future. This is true for both new legal questions that will almost certainly arise, as well as familiar legal issues of quite considerable practical importance. One primary challenge is that the Court has not fully consolidated its own case law, often because of deeply rooted differences in the various legal cultures operating within the ICC. One may think of legal aspects in the areas of evidence, appeals, and substantive criminal law, as the proper delineation between the different forms of individual criminal responsibility. Yet when it comes to the ICC Statute’s novel approach to providing reparations, it is
10 No. 70 JUSTICE probably fair to say that we are still in the early stages of development. Another fundamentally important issue in need of further discussion is how the ICC will handle the crime of aggression. On two separate occasions – one in 2010 in Kampala and again in 2017 in New York – the diplomatic clock had to be stopped in order to approve the Court’s jurisdiction over crimes. The conditions for the Court’s exercise of jurisdiction are far more stringent when it comes to the crime of aggression relative to the other three core crimes handled by the ICC – genocide, crimes against humanity, and war crimes. In the Situation of Ukraine, even though the Prosecutor is taking action in relation to war crimes, crimes against humanity, and genocide, his hands are regrettably tied with respect to the core allegation directed against President Putin: the continuing commission of a crime of aggression. It is a historical irony that this restrictive jurisdictional regime is by no means due only to a desire of the Russian Federation. It is equally or even more so the result of the insistence by France, Great Britain and the United States. This means that all four States have established what Hans Kelsen called the “creative Nuremberg” precedent, which makes the very waging of a war of aggression an international crime. Yet these same States have simultaneously remained opposed to fully embracing this precedent on a practical level. One can only hope that the three major Western powers will reconsider this policy, now that Russia’s war of aggression against Ukraine is shaking what the International Court of Justice has rightly called a cornerstone of the UN Charter: the prohibition of the use of force. As reflected in Prosecutor Khan’s address before the 2022 Assembly of States Parties of the ICC in the Hague, “Now may be a moment in which we may act collectively, in a principled way, to reinvigorate action in relation to the crime of aggression under the Rome Statute.” VII. Signs on the Horizon At the end of my cursory reflections, I wish to highlight a question that is important not only for the ICC, but also for the larger legal community: where are the roots of the jurisdiction that this Court is exercising? Is the Court the mere recipient of a bundle of national jurisdiction titles which States Parties have chosen to delegate for the purpose of their collective exercise? Or is international criminal law stricto sensu, that is, a narrowly defined body of crimes anchored in customary international law? If so, doesn’t this imply the existence of an ius puniendi (“right to punish”) within the international community, which may be exercised by the ICC as one of this community’s fiduciaries? This truly fundamental question has not yet received the direct attention of the ICC’s judiciary. When the day comes for the Court to pronounce a clear vision of the underpinnings of its own existence, it will be imperative that the judges turn their closest attention to Israel’s Supreme Court Judgment in the Eichmann case – a case, by the way, in which Jacob Robinson contributed to its preparation. It is impossible to find a more emphatic and powerful articulation of a truly universal vision of international criminal law and justice than that espoused in one strand of the reasoning of this historic judgment. I sincerely hope that, underneath the surface of the political controversies of today, any future work toward the ICC’s vision for global justice will be guided by such a genuinely cosmopolitan spirit. n Professor Claus Kreß is Professor of Criminal Law and Public International Law and the Director of the Institute of International Peace and Security Law of the University of Cologne.
11 Fall 2023 srael has a good record of complying with international law. However, there are rules that seem to have been tailor-made and applied only to Israel, some of which I would like to highlight here. A legitimate preliminary question, however, could be whether international law is at all relevant in a situation in which Israel faces an opponent such as Hamas, a murderous terrorist group that ignores every legal norm, as demonstrated by its attack on Israel's sovereign territory on October 7, 2023. Hamas carried out heinous acts of murder and torture against thousands of peaceful citizens. Hamas takes hundreds of innocent persons hostage and murders babies and children by slitting their throats. Under international law, the perpetrators of such crimes are international criminals who can be tried by courts of every country in the world. Despite the behavior of Hamas, international law remains relevant for Israel. Israel is a democratic, lawbased society where customary international law is part of the fabric of the Israeli legal system and is enforced by impartial courts. Moreover, international law is p olitically relevant since legitimacy gives political power. As a tiny state dependent on trade and relations with other states, Israel has a problem the moment something is branded as illegitimate under international law. Our Arab opponents are perfectly aware of this, and that is why they exert tremendous effort to brand Israel's activities as illegal under international law. To do so, they warp international law and propose laws that are only a pplicable to Israel. I will present here nine examples of rules that have either been warped or entirely invented, solely regarding Israel. The first issue is the nature of UN resolutions. There is a claim that UN General Assembly resolutions create international law, but this is not so. No state a ccepts a UN General Assembly resolution as binding, except with regard to Israel. You may have heard that “Israel is violating UN resolutions.” This is nonsense. UN resolutions are political statements, and do not create international law. In fact, the d rafters of the UN Charter very carefully refrained from granting any UN body the right to create international law. International law is created by state actions, not by the UN. Nevertheless, we still hear, “Aha, they violated UN resolutions,” but only with regard to Israel. The second issue is the nature of armistice demarcation lines. When a state signs an armistice agreement it includes the definition of what is called an “armistice demarcation line.” Such a line marks the boundary from beyond which troops should not move. In 1949, Israel signed armistice agreements with all its Arab neighbors. These agreements contained definitions of the armistice demarcation lines. There is a clause in all the agreements, inserted at the demand of the Arab states, that the lines are temporary, and not permanent boundaries. The temporary armistice demarcation line between Israel and Jordan (commonly referred to as the “Green Line” because the line was created on a map using a green crayon), is the line that demarcated what is currently referred to as Judea and Samaria or the “West Bank.” Yet, somehow, the application of tailor-made “international law” rendered the Green Line into a permanent boundary. A temporary armistice demarcation line magically became an established political boundary – magic that only seems to apply to Israel. The third issue is military occupation. It is not a pleasant phenomenon, but it is an inextricable aspect of the laws of war that apply when a state occupies the sovereign territory of an enemy state. Whether Israel is in fact occupying the territory of a foreign state in Judea and Samaria is a moot point. Israel's position is that Judea and Samaria do not constitute the territory of a foreign state. The territory was not legally Jordanian, and Jordan subsequently renounced any claim to the territory after the 1967 war. It may be slated as the location of a future Palestinian state, but at present, this is certainly not the case. It is not occupied territory; it is disputed territory. In fact, Israel did something for which I do not believe it has received credit. The Palestinian population in the West Bank is not comprised of Israeli citizens, and there International Law Tailor-Made for Israel* I Robbie Sabel * This edited paper is based on a webinar of the UKFLI Charitable Trust. The original video can be v iewed at https:// www.youtube.com/watch?v=aq1beJrGGEc&t=1593s Appreciation is expressed to Dr. Ira Hammerman, who assisted with editing the transcript.
12 No. 70 JUSTICE is no other state that could look after them, including Jordan, which has renounced its claim to the West Bank. Israel granted the Palestinian population the rights of protected persons in an occupied territory even though Israel does not regard the West Bank as occupied territory. As such, the Palestinian population has all the rights which the Geneva Conventions and the H ague Regulations grant to protected persons in occupied territory. Israel allows the Red Cross to be present at trials and grants the population the unprecedented right to appeal to the Israel High Court of Justice against acts conducted by the Israeli Government and by its armed forces. Israel has claims to this territory, but Israel is also aware that there are other existing claims. That issue aside, somehow for Israel, the very word “occupation” is deemed “illegal.” Why? Because it relates to Israel. Occupation is legal under the laws of war. The U.S. occupation of Japan after World War II was perfectly legal. The Allied occupation of Germany after World War II and the U.S. occupation of Iraq a fter the Gulf War were also considered perfectly legal. It is interesting that the UN Security Council, which has previously proven not to be the friendliest of bodies towards Israel, has never referred to the Israeli occupation as “illegal.” This is because the powers themselves recognize that under the laws of war, occupation is legal. It is not something permanent, and Israel does not want it to be permanent. Nevertheless, the phrase “illegal occupation” is repeated in any conversation regarding Israel. Another fact the world also chooses to ignore is that since the Oslo Agreements in the early 1990s, over 90% of the Palestinians in the West Bank live under the civilian control of the Palestinian Authority, and not under Israeli administration. The fourth issue is the use of the word “apartheid.” The attempt to brand Israeli policy as “apartheid” is particularly nefarious. The moment one is smeared with the word “apartheid,” their actions are inadmissible; they are taboo, and illegal. It evokes immediate condemnation in the third world based on their historic emotions regarding this issue. Our Arab opponents are perfectly aware of this, and this is precisely why they intentionally use the term. Israel built a security barrier separating Israel from Judea and Samaria (the West Bank) to combat terrorist attacks that are committed by terrorists located across the demarcation line. The barrier separated Israel's sovereign territory from territories in dispute. To pass the barrier, one must go through border control. Indeed, fences and barriers are often unpleasant, but good fences can sometimes make good neighbors. When it comes to Israel, people treat the barrier as an “Apartheid Wall.” No o ther country that has built a fence around its borders has ever had it called an Apartheid Wall. I was very disturbed to see an Amnesty report a few weeks ago claiming that Israel’s use of facial identification at the border is representative of “apartheid.” Anybody who has gone through Heathrow Airport – or many other airports in the world – is aware that the airports utilize facial identification. You must present your passport, and if your face does not look like the face printed on your passport, you are in trouble. This is exactly what Israel does at checkpoints located along the border. We use facial identification only when inspecting people who want to travel from Gaza or Judea and Samaria into Israel. Somehow Amnesty decided this behavior is “apartheid.” We cannot ignore this extreme warping of the concept. It is increasingly harmful because when people throughout the world hear the word “apartheid,” they will impulsively say, “That is abhorrent. We reject any country that does that.” The fifth issue is civilian casualties, which are always a tragedy. However, when an enemy embeds its forces amongst the civilian population, it is impossible for a state to conduct military activities without incurring some civilian casualties. When reading about D-Day, I remember learning that approximately 40,000 French civilians were killed on the first day of the operation. Yet, no one argued that the Allies were committing a war crime. I recently attended a conference of Advocates General from different armies, and these very senior legal officers stated that Israel takes more precautions to ensure it does not harm civilians than any other army. We do so for several reasons ‒ for humanitarian considerations, but also out of self-interest. Simply put, killing civilians harms Israel, regardless of the legality. It enables Hamas to say, “Look, they are attacking civilians.” It does not provide Israel with any military advantage. Hamas is well aware of Israel’s caution and deliberately places its military installations, including rockets, in or adjacent to civilian dwellings, schools, and h ospitals. Nevertheless, you must have read: “Oh, civilians were killed: it is a war crime.” It is a war crime if you deliberately attack civilians or even if citizens are harmed through negligence. If you are attacking Hamas’s rockets, which are placed next to and amidst civilians, the commander, on the spot, must consider whether the foreseeable harm to civilians is excessive compared to the military advantage of attacking the target. Is it proportional? Clearly there are cases, such as in the recent w ar in Gaza, that Hamas placed a military command post underneath a hospital. Under the laws of war, Israel could have destroyed the hospital. Yet Israel
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