The Israeli-Palestinian Conflict from the Perspective of International Criminal Law

Question 1

How is international criminal law both criminal law and public international law?

Answer 1

Criminal law aspect as it criminalizes individual conduct, but also forms part of public international law since its normative sources are based on public international law.

Question 2

What is substantive international criminal law?

Answer 2

International criminal law is a body of international rules designed both to proscribe certain categories of conduct (for example, war crimes, crimes against humanity, genocide, aggression) and to make those persons who engage in such conduct criminally liable.

Question 3

What are the two models for procedural international criminal law?

Answer 3

Indirect enforcement model and direct enforcement model.

Question 4

What is the indirect enforcement model of international criminal law?

Answer 4

Enforcement through national authorities.

Question 5

What is the direct enforcement model of international criminal law?

Answer 5

Through international authorities, prescribes the rules regulating international proceedings before international criminal courts and tribunals, the rules governing the actions by prosecuting authorities and the various stages of international tribunals.

Question 6

Which takes precedence, the indirect enforcement model or the direct enforcement model?

Answer 6

The indirect enforcement model – the direct enforcement model will not come into effect if it is dealt with nationally.

Question 7

Give some examples of special tribunals that have been established to address international criminal law.

Answer 7

International Military Tribunals at Nuremberg and Tokyo, special criminal tribunals with respect to crimes committed in the conflicts in ex-Yugoslavia and Rwanda, Special Courts for Sierra Leone and Cambodia, the Special Tribunal for Lebanon, the Special Tribunal for East Timor, the Kosovo Specialist Chambers and Specialist Prosecutor’s Office, and the Extraordinary African Chambers.

Question 8

What statute established the International Criminal Court?

Answer 8

The Rome Statute.

Question 9

When did the Rome Statute enter into force?

Answer 9

2002.

Question 10

How many countries have ratified the Rome Statute?

Answer 10

122 of 193.

Question 11

True or false? Israel is a signatory to the Rome Statute.

Answer 11

False, they signed but then informed the United Nations Secretary General that they no longer intend to become state parties.

Question 12

True or false? The United States of America is a signatory to the Rome Statute.

Answer 12

False, they signed but then informed the United Nations Secretary General that they no longer intend to become state parties.

Question 13

What is the International Criminal Court’s most serious weakness?

Answer 13

It lacks jurisdiction over crimes committed in or by countries that have not signed or ratified the Rome Statute, including the United States of America, Russia, China, India, Turkey, Indonesia, Iran, Saudi Arabia, Israel, Egypt, Pakistan, and North Korea.

Question 14

What message did President Donald Trump of the United States of America send to the International Criminal Court?

Answer 14

It has no jurisdiction, no legitimacy, and no authority. Has threatened retaliatory steps against International Criminal Court staff and member countries should they investigate United States of America citizens, or citizens of allied countries.

Question 15

What message did John Bolton of the National Security Agency have regarding the International Criminal Court?

Answer 15

Will negotiate binding bilateral agreements to prohibit nations from surrendering citizens to the International Criminal Court. Will ban judges and prosecutors. Will impose sanctions on the International Criminal Court.

Question 16

How many cases have gone before the International Criminal Court?

Answer 16

27.

Question 17

How many convictions have there been at the International Criminal Court?

Answer 17

Eight.

Question 18

What are the organs of the International Criminal Court?

Answer 18

Office of the Prosecutor, Pre-Trial Chamber, Trial Chamber, Appeals Chamber, Prosecutor and 18 judges, and Registry.

Question 19

What does it mean when the International Criminal Court says it addresses situations, not parties?

Answer 19

It is impartial and it is not a vehicle for “victor’s justice.”

Question 20

Does the International Criminal Court prosecute states?

Answer 20

No, it prosecutes individuals.

Question 21

Who enjoys immunity from the International Criminal Court?

Answer 21

No one, including the heads of state and senior officials (art. 27(1) of the Rome Statute).

Question 22

The International Criminal Court’s jurisdiction is limited to events taking place before…

Answer 22

July 1, 2002, when the Rome Statute entered into force. If a state joins the International
Criminal Court after 2002, the International Criminal Court only has jurisdiction after the statute entered into force for that state.

Question 23

What crimes does the International Criminal Court have jurisdiction over?

Answer 23

Genocide, crimes against humanity, war crimes, and crimes of aggression.

Question 24

Definition of genocide in the Rome Statute.

Answer 24

Committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.

Question 25

Definition of crimes against humanity in the Rome Statute.

Answer 25

List of actions that may amount to crimes against humanity, including apartheid, forced pregnancy, and other sexual violence.

Question 26

Definition of war crimes in the Rome Statute.

Answer 26

Serious violations of the laws and customs of war that apply in time of armed conflict.

Question 27

In what international instruments are the laws of war laid out?

Answer 27

Hague Regulations and Geneva Conventions.

Question 28

Definition of aggression in the Rome Statute.

Answer 28

Use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state or in any other manner inconsistent with the Charter of the United Nations. Is a leadership crime.

Question 29

The crime of aggression is known as a leadership crime. What does this mean?

Answer 29

It is required that the person concerned is in a position effectively to exercise control over or to direct the political or military action of the state which committed the act of aggression.

Question 30

Did Israel ratify the Rome Statute?

Answer 30

No.

Question 31

Why did Israel refuse to become a party to the Rome Statute?

Answer 31

Because of the alleged politicization ofthe drafting of the list of crimes set out in art. 8 of the Rome Statute, and specifically the alleged politically motivated manipulation of the drafting of art. 8(2)(b)(viii).

Question 32

What does art. art. 8(2)(b)(viii) of the Rome Statute state?

Answer 32

War crimes includes serious violations of the laws and customs applicable in international armed conflict…within the established framework of international law, namely…the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.

Question 33

What are the four basic principles of criminal jurisdiction?

Answer 33

Territorial, nationality, protective, and universality.

Question 34

What is the territorial principle of criminal jurisdiction?

Answer 34

Crimes taking lace in the jurisdiction of the state, irrespective of whether the perpetrator is a national.

Question 35

What is the nationality principle of criminal jurisdiction?

Answer 35

If the perpetrator is a national (of particular relevance to states that do not extradite its own citizens).

Question 36

What is the protective principle of criminal jurisdiction?

Answer 36

Passive personality principle or principle of state protection (if the victim is a national, the victim’s state can step in).

Question 37

What is the universality principle of criminal jurisdiction?

Answer 37

Serious crimes against international law, based on principle that such crimes harm international community as a whole.

Question 38

Which principles of criminal jurisdiction underpin the International Criminal Court?

Answer 38

Territorial and active personality principle.

Question 39

According to art. 12 of the Rome Statute, the International Criminal Corut has the jurisdiction to investigate and prosecute when?

Answer 39

When there is a territory link; if there is a citizenship link; or if the case is referred to the Office of the Prosecutor by the Security Council.

Question 40

True or false? The passive personality principle applies to give the International Criminal Court jurisdiction.

Answer 40

False.

Question 41

True or false? The International Criminal Court can exercise jurisdiction over non-international conflicts by non-member states.

Answer 41

False.

Question 42

Article 13 of the Rome Statute allows for International Criminal Court intervention when:

Answer 42

State referral; motu proprio investigation by the Prosecutor based on communications by the individual victims and organizations; resolution of the United Nations Security Council; on the basis of the Rome Statute (territoriality or citizenship link); or upon referral to the Office of the Prosecutor by the Security Council.

Question 43

What are the requirements to become a state according to the Motevedio Convention? Why does Palestine not qualify?

Answer 43

A permanent population; a defined territory; a government; and capacity to enter into relations with other states. There is no territory over which it exercises effective control in the Gaza Strip and the West Bank.

Question 44

What happened in the 2009 Gaza War (Operation Cast Lead)?

Answer 44

Palestine tried to bring a claim against Israel before the International Criminal Court. The question arose as to whether Palestine was a state or not under art. 12 of the Rome Statute.

Question 45

Has Palestine become a member state of the United Nations?

Answer 45

No, it has submitted an application according to art. 4(2) but the Security Council has not made any recommendations.

Question 46

What did the General Assembly decide with regards to Palestine’s application to become a state?

Answer 46

Decided that they should be upgraded from observer entity to non-member observer state.

Question 47

What did Palestine request from the International Criminal Court?

Answer 47

Requested the Prosecutor “to investigate, in accordance with temporal jurisdiction of the International Criminal Court, past, ongoing, and future crimes within the International Criminal Court’s jurisdiction, committed in all parts of the territory of the State of Palestine.

Question 48

What was the United States of America’s attitude towards the International Criminal Court deciding on Palestine’s case?

Answer 48

In 2015, a law was enacted by the United States of America Congress providing that Palestinians cannot have an office in Washington, District of Columbia if they support the International Criminal Court’s move to investigate or prosecute Israeli nationals for crimes against Palestinians.

Question 49

What happened in the 2010 Flotilla Raid?

Answer 49

In May of 2010, a flotilla of six ships departed Turkey, sailing for Gaza to break the naval blockade on Gaza. Israel demanded that the ships stop their advance to Gaza’s shores and unload in the port of Ashdod, Israel, but the flotilla continued. In response, Israel Defence Forces naval commandos seized control of the ships in international waters. In the course of the seizure of the Mavi Marmara, a violent confrontation between the Israel Defence Forces and flotilla participants ensued. Ten passengers were killed and dozens more wounded. Following the incident, Israel was condemned by many countries as well as the United Nations Security Council. Diplomatic relations between Israel and Turkey deteriorated.

Question 50

Why did the International Criminal Court become involved in the 2010 Flotilla Raid?

Answer 50

Because the Mavi Marmara was Cosmos flagged, and Cosmos submitted a request to the Office of the Prosecutor to investigate the events surrounding the flotilla raid, claiming that Israel had committed war crimes of willful killing, willfully causing serious injury to body and health, and committing outrages upon personal dignity.

Question 51

On what ground did the Prosecutor decide not to proceed with the investigation on the 2010 Flotilla Raid?

Answer 51

Insufficient gravity.

Question 52

What is the gravity requirement under art. 53 of the Rome Statute?

Answer 52

Purpose of the International Criminal Court is to prosecute individuals who have committed the most heinous of crimes and are thus troublesome to the international community. In deciding whether to initiate an investigation and a prosecution, the Prosecutor may thus consider the gravity of the crime. The major criteria for assessing gravity of the case includes the scale, nature, and manner of commission of the crimes and their impact.

Question 53

What are the three major criteria for assessing gravity of the case?

Answer 53

The scale, nature, and manner of commission of the crimes and their impact.

Question 54

What does the 2010 Flotilla Raid case demonstrate?

Answer 54

Evidently this matter touches upon fundamental questions pertaining to the nature of prosecutorial discretion and the degree of independence of the Office of the Prosecutor; the distribution of authority between it and the Pre-Trial Chamber; the system of checks and balances between the two bodies and the scope and reach of judicial oversight.

Question 55

How many times did the Pre-Trial Chamber request the Prosecutor reconsider her decision?

Answer 55

Twice.

Question 56

What was the decision of the prosecutor each time she was requested to reconsider her decision?

Answer 56

Insufficient gravity.

Question 57

What problems did the Pre-Trial Chamber have with the Prosecutor’s decision?

Answer 57

Failed to assign due weight to the fact that an investigation would have considered those who bear the greatest responsibility for the commission of the alleged crimes; failed to consider 10 killings, over 50 injuries, and hundreds of instances of outrage and mistreatments a compelling indicator of sufficient gravity; failed to grasp the distinction between crimes of outrages of personal dignity and torture was premature at the initial stage of preliminary examination; failed to duly consider accounts that the Israel Defence Forces live fire was encountered before resistance was encountered during the boarding; in this event, conflicting accounts call for investigation.

Question 58

What happened in the 2014 Gaza War (Operation Protective Edge)?

Answer 58

Set in motion the Palestinian application to be recognized as a state under the International Criminal Court. Took place from July to August, 2014. According to Israel, the objective was to stop rocket and mortar attacks by Hamas and Islamic Jihad armed groups and neutralize their cross-border tunnels. High number of civilian casualties and injuries as well as damage and destruction of buildings and infrastructure, especially in Gaza. Both parties allegedly committed war crimes. Israel Defence Forces allegedly directed attacks at civilians and civilian objects (for example, residential buildings, medical facilities, and schools) or at appropriate targets where the danger to civilians were excessive in relation to the overall military advantage anticipated. Palestinian armed groups allegedly launched thousands of rocket and mortar attacks directed indiscriminately against Israeli civilians and civilians objects and used protected persons as shields.

Question 59

What is the key question for Israel that rose as a result of the 2014 Gaza War (Operation Protective Edge)?

Answer 59

Whether the principle of complementarity applies.

Question 60

What is the principle of complementarity?

Answer 60

The jurisdiction of the International Criminal Court is residuary; it is only if the national jurisdictions concerned do not take action to investigate and prosecute the individuals concerned that the International Criminal Court would intervene. The rules of international criminal law either authorize states or impose upon them the obligation to prosecute and punish conduct deemed criminal under international criminal law. The principle of complementarity provides that certain cases will be inadmissible even though the International Criminal Court has jurisdiction.

Question 61

When can the International Criminal Court step in despite there being a domestic framework?

Answer 61

Absence of an adequate legislative framework; existence of laws that serve as a bar to domestic proceedings, such as amnesties, immunities, or statutes of limitations; the deliberate focus of proceedings on low-level or marginal perpetrators despite evidence on those more responsible; other, more general issues related to the lack of political will or judicial capacity, such as the lack of resources allocated to the proceedings at hand as compared with overall capacities.

Question 62

Which articles deal with the principle of complementarity in the Rome Statute?

Answer 62

Articles 17 and 53.

Question 63

What circumstances might suggest that national proceedings are insufficient?

Answer 63

Manifestly insufficient steps in the investigation or prosecution; deviations from established practices and procedures; ignorance of evidence or giving it insufficient weight; intimidation of victims, witnesses or judicial personnel; irreconcilability of findings with evidence tendered; manifest inadequacies in charging and modes of liability in relation to the gravity of the alleged conduct and the purported role of the accused; manifestly lenient sentences in the light of the gravity of the offence; mistaken judicial findings arising from mistaken identification, flawed forensic examination, failures of disclosure, fabricated evidence, manipulated or coerced statements, and/or undue admission or non-admission of evidence; and refusal to provide information or to cooperate with the International Criminal Court.

Question 64

What indications were there that Israel should be subject to the International Criminal Court based on state referral for its actions in the 2014 Gaza War (Operation Protective Edge)?

Answer 64

Actions of the Israel Defence Forces were investigated by the Military Advocate General, which carries out investigations internally within the military.

Question 65

What was the finding of the Turkel Commission?

Answer 65

Military investigations are not necessarily non-independent; however, it recommended several structural changes to bolster independence and impartially of the military justice system and make its investigations more transparent and effective.

Question 66

What is the problem with the investigations by the Military Advocate General?

Answer 66

The problem is that the Military Advocate General acts as both a legal advisor and as a chief decision-maker regarding investigations and prosecution. Thus, the Military Advocate General may have to decide to prosecute military officials involved in operation approved by them. Further, the Military Advocate General is appointed by the Minister of Defence, and with no fixed term.

Question 67

What is the chief recommendation for investigations by the Military Advocate General?

Answer 67

Make appointments subject to review by outside committee headed by the Civil Attorney General, and to institute a fixed term.

Question 68

What is the difference between the Chief Military Prosecutor and the Military Advocate General?

Answer 68

The Military Advocate General is the Chief Military Prosecutor’s boss.

Question 69

What were the findings of the State Comptroller when it came to the Military Advocate General’s investigation into the 2014 Gaza War (Operation Protective Edge)?

Answer 69

Only a handful of cases lead to prosecution, and usually were low-level personnel for relatively minor offences. General sense is that impunity prevails to a significant extent. There is also undue delay in decision-making.

Question 70

What happened in the Elior Azaria case.

Answer 70

Decision was taken to put soldier that shot Palestinian who was incapacitated in the head for manslaughter. There was an extrajudicial execution when posted on social media.

Question 71

What happened in the Black Friday Incident and the Hannibal Directive?

Answer 71

Military officials believed that one of their soldiers was kidnapped and alive, and attempted a rescue. In the ensuing battle, at least 42 Palestinian civilians and 72 militants were killed. The Military Advocate General was charged with investigating whether the firepower used in response to the ambush was proportional – findings suggested that the Hannibal Directive resulted in only 10 deaths.

Question 72

Where do most of the Palestinians live in the West Bank?

Answer 72

Areas A and B.

Question 73

What is unique about Areas A and B of the West Bank?

Answer 73

It is under the civil control of the Palestinians.

Question 74

Why do commentators suggest that Israeli settlements in the West Bank are contrary to international law?

Answer 74

Because it violates s. 49(6) of the Fourth Geneva Convention which states that an “occupying power shall not depart or transfer parts of its own civilian population into the territory it occupies.”

Question 75

What does the Rome Statute say about population transfer?

Answer 75

It is a war crime.

Question 76

What are five questions that must be asked with respect to the population transfer accusations levied against Israel?

Answer 76

Territorial jurisdiction, temporal jurisdiction, meaning of transfer, gravity, and imputability.

Question 77

What is the question surrounding territorial jurisdiction on population transfer accusations levied against Israel?

Answer 77

Even if the settlements were in breach of international law, what are the precise contours of the territory of Palestine? On one hand, some argue that precise borders beyond Area A are in dispute, while others grant that Palestine does not have effective control of the West Bank but since Israel does not claim sovereignty, Palestinian entitlement extends to the West Bank.

Question 78

What is the question surrounding temporal jurisdiction on population transfer accusations levied against Israel?

Answer 78

Is the crime in question a ‘continuing’ offence or may it only apply to facts performed following period with respect to which Palestinians lodged deflation in 2015 following art. 12(3) from June 13, 2014?

Question 79

What is the question surrounding the meaning of transfer on population transfer accusations levied against Israel?

Answer 79

Active/forcible transfer or is encouragement/facilitation by way of incentives enough? Tax breaks, subsidies, quality road infrastructure, allowing easy access to metropolitan area, anti-boycott measures, and military protection (including restrictions on freedom of movement of Palestinians)?

Question 80

What is the question surrounding gravity on population transfer accusations levied against Israel?

Answer 80

Settlement activities, by themselves, are not deadly, but they could be considered grave violations of international law that provoke instability and violence. Israeli settlement enterprise has not involved deportation or forceful removal of local Palestinian population.

Question 81

What is the question surrounding imputability on population transfer accusations levied against Israel?

Answer 81

Who can be held accountable? Would responsibility be limited to senior political and military officials, or could it extend to low-ranking employees within the public sector?

Question 82

How is the Chief Military Prosecutor responding to violence at the Gaza border?

Answer 82

Opening criminal investigation pertaining to the deaths of 11 Palestinians killed by Israeli fire during demonstrations along the Israel-Gaza border last year.