Preventing lawfare against Israel at the International Criminal Court

In partnership with leading UK barristers’ chambers 9 Bedford Row, The Lawfare Project submitted a series of briefings to the Office of the Prosecutor of the International Criminal Court (ICC) regarding legal issues arising from the ICC's intervention in Israel, as well as issues that would arise from any investigation of nationals of ICC non-member states (such as Israel and the United States). When this initiative was commenced, the ICC's Prosecutor had published her annual preliminary examination report for 2018, which contained fundamental errors with respect to the legal status of elements that the Prosecutor had identified as material. The series of communications submitted by The Lawfare Project were aimed at correcting the Prosecutor's most glaring errors, providing clarity with respect to preconditions to the exercise of ICC jurisdiction, and warning against reliance on unsound human rights reporting. The Lawfare Project’s work has changed the nature of the conversation at the ICC—both on "complementarity" and on the ICC's capacity to exercise jurisdiction over non-States Parties generally, and Israelis specifically. In December, 9 Bedford Row lawyers appeared before the ICC at its Afghanistan hearings arguing against the exercise of jurisdiction over nationals of non-member states such as Israel and the United States. The Prosecutor then made two important announcements: first, that she would seek a ruling from the ICC Judges on territorial jurisdiction, and second to close her examination of a 2010 incident in which a Gaza-bound flotilla filled with militant anti-Israel agitators was intercepted by Israeli authorities. 2020 will be a critical year, as the Prosecutor's position on territorial jurisdiction requires further robust challenge in order to mitigate against instrumentalization and abuse of the Court's process by Israel's adversaries.

Working in collaboration with the Institute for NGO Research, Palestinian Media Watch, and the Jerusalem Center for Public Affairs, The Lawfare Project filed a brief with the ICC on February 13, 2020 arguing that the Court lacks jurisdiction. It is not the Prosecutor’s place to substitute her judgment for that of the parties to this peace process, who have agreed that there currently is no “State of Palestine.”

The ICC authorized The Lawfare Project to file an amicus brief on this matter and, on March 16, 2020, the substantive brief was filed, arguing against the ICC’s exercise of jurisdiction over Israel in the so-called “Situation in Palestine.” The brief argues that there is no “State of Palestine” capable of referring cases to the ICC, and the ICC therefore lacks jurisdiction over Israel, which in any event did not become a party to the Rome Statute that established the court. When Israel and the PLO signed the Oslo Accords, they agreed to politically negotiate the contours and conditions precedent necessary for Palestine to become a sovereign state. Those negotiations have not yet been completed, and it is not appropriate for the ICC, established to determine individual criminal liability under highly limited and specific circumstances, to substitute its judgment for that of the parties to the negotiations of a peace process.