Would Judicial Reforms in Israel Open Up the Israeli Military to Charges of War Crimes?

In the extensive, ongoing discussion and analysis of proposals to reform Israel’s legal system, some concern has been raised at the possibility that changes in the legal system could weaken and endanger the integrity and independence of Israel’s court system and specifically its Supreme Court, and diminish their judicial functions.

This concern surmises that a weakening of Israel’s legal system could give rise to claims that Israel’s courts are no longer independent. Such claims could be raised to counter invoking the ICC Statute’s complementarity clause as a defense against the exercise of ICC jurisdiction following putative war crimes allegations, referred obsessively and systematically to the ICC by the Palestinian leadership.

The scope of the present paper is not intended to cover the flippant and questionable nature and political context behind such allegations. Nor does it assume in any way or manner, given the widely acknowledged moral, ethical, and principled character of Israel’s highly trained and qualified military, that such officials and military commanders would be in situations requiring invoking the complementarity clause.

The ability of a state’s legal system to function independently is a central criterion of the Statute of the International Criminal Court that determines whether the court could or could not exercise its jurisdiction.

The principle of complementarity governs the exercise of the Court’s jurisdiction. The Statute recognizes that States have the first responsibility and right to prosecute international crimes. The ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but in reality, are unwilling or unable to genuinely carry out proceedings. The principle of complementarity is based both on respect for the primary jurisdiction of States and on considerations of efficiency and effectiveness since States will generally have the best access to evidence and witnesses and the resources to carry out proceedings.¹

The criteria of unwillingness or inability to carry out proceedings would involve some indication of purposely shielding the accused from criminal responsibility or a lack of intent to bring the person to justice. This may be inferred from political interference or deliberate obstruction and delay, from institutional deficiencies due to political subordination of the legal system, or procedural irregularities indicating a lack of willingness and inability to investigate or prosecute genuinely.

It would appear to be highly unlikely that the elements of the reform as proposed in Israel would weaken the Supreme Court’s ability, capability, and willingness to function judicially in the appropriate manner.

Article 17 of the ICC Statute,² in addressing issues of admissibility of cases presented to the court, determines in sub-paragraph 1 that a case would be inadmissible if it “is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to carry out the investigation or prosecution,” or if it has already been investigated and it has been decided not to proceed with a prosecution.

Sub-paragraph 2 of the same article sees the criterion of “unwillingness” as including an intention to shield an accused person from international justice, or unjustifiably delay proceedings, or a lack of independence or impartiality.

Sub-paragraph 3 refers to the total or substantial collapse or unavailability of the state’s judicial system.

It is unlikely that the proposed legal reforms would affect the judicial functioning of Israel’s courts, nor would they bring about a situation of total or substantial collapse or unavailability of Israel’s judicial system. They would not render Israel’s justice system or its Supreme Court unable or unwilling to function independently.

It may thus be concluded that any claim as to the potential weakening of the judicial integrity or authority of Israel’s Supreme Court would have no basis.

In the discourse linking the proposed judicial reforms and proceedings in the ICC, some have claimed explicitly that if the reforms are implemented, the result would be a heightened risk of arrest and prosecution of IDF soldiers by the ICC. This argument is flawed since it fails to consider several additional relevant factors.

The subject of complementarity only arises in the ICC once it has been sufficiently established that a crime that falls under the jurisdiction of the court has been committed.

The ICC is not a regular criminal court but rather an instance of last resort designed to adjudicate the most heinous war crimes and criminals. This unique function and limited jurisdiction are reflected in the Rome Statute,³ which provides that the ICC only has jurisdiction over four categories of offenses: The crime of genocide; crimes against humanity; war crimes; and the crime of aggression.

While sundry allegations against Israel are often bandied around, it is essential to distinguish between popular colloquialisms and the actual requirements of the Rome Statute.

In this context, the most fundamental provision is that any alleged crime be committed as part of a more comprehensive policy. Thus, for example, the crime of Genocide⁴ requires that the perpetrator conducted the acts defined in the statute “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Similarly, the fundamental basis for alleging that a Crime against humanity⁵ has been committed requires that the prescribed act must have been conducted “as part of a widespread or systematic attack directed against any civilian population.”

While civilians are too often killed within the context of military operations, most certainly when those operations are conducted in urban areas,⁶ not every death constitutes a war crime. This distinction is particularly relevant to the Israel-Palestinian conflict, in which Palestinian terrorist organizations defy the norms and conventions of international humanitarian law, and specifically the laws of armed conflict, intentionally presenting themselves as civilians, using civilian urban surroundings as their bases of operations, and using the Palestinian civilian population as human shields.

However, as the “Elements of Crimes”⁷ adds, in its clarification of the provisions of the Statute, in order to prosecute an offender for committing a crime against humanity, it is necessary to prove “requisite participation in and knowledge of a widespread or systematic attack against a civilian population.” The Elements of Crimes adds that the offending acts must be part of “a course of conduct involving the multiple commission of acts” committed “pursuant to or in furtherance of a State or organizational policy to commit such attack.”

Notwithstanding the complex environment, there is no factual basis to claim that Israel has an intentional policy to carry out “widespread or systematic” attacks specifically “directed” at Palestinian civilians and that IDF soldiers knowingly implement that policy. Deaths of civilians, while most regrettable, caused incidentally by attacks on legitimate targets, do not fulfill the requirements of the elements of a crime against humanity.

Similar to the previous examples, the jurisdiction of the ICC to adjudicate War Crimes requires the intentional targeting of a civilian population, “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.”

By their nature, war crimes require a breach of the Laws of Armed Conflict. Thus, for example, the Rome Statute and the Elements of Crimes specifically recognize that civilian deaths caused incidentally by attacks on legitimate targets and that are not “clearly excessive in relation to the concrete and direct overall military advantage anticipated”⁸ are not necessarily considered a criminal offense.

Furthermore, before assessing the independence of Israel’s judiciary, the complementarity principle first requires evaluating the effectiveness of Israel’s investigative and prosecutorial practices and procedures.

While detractors make sundry claims, it is hard to argue that Israel’s investigative bodies – civilian and military – or its prosecutorial organs – civilian and military – do not enjoy the utmost independence. Credible claims that IDF soldiers have committed offenses are thoroughly investigated despite objective difficulties, including, inter alia, the lack of cooperation from the victims.⁹

When the evidence gathered gives rise to the prima facie conclusion that a soldier has committed an offense, and the prosecution believes there is a reasonable chance to secure a conviction,¹⁰ indictments are submitted.

Since the judicial reforms are not intended to impact or change the independence of the investigative and prosecutorial branches of Israel’s law enforcement bodies – civilian or military – the argument that these reforms will adversely affect IDF soldiers or heighten the potential threat posed vis-à-vis the ICC, is again lacking any veracity.

Considering the above, attempts to link Israel’s proposed judicial reform and the ICC principle of complementarity would appear to indicate a lack of understanding of both the ICC Statute’s provisions and the proposed reform.

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