Steven Kay QC and Joshua Kern of 9 Bedford Row have filed a submission questioning the admissibility of cases regarding Israeli settlements before the ICC. The submission was made with support from The Lawfare Project and UK Lawyers for Israel (UKLFI). It is argued without prejudice to jurisdictional arguments which also operate as barriers to the ICC’s investigation and prosecution of Israeli nationals.
The submission emphasises that the Israeli Supreme Court (sitting as the High Court of Justice) plays an active role ruling on matters relating to Israeli settlements. Because Israel’s own courts already rule on the issue and have issued several landmark rulings on settlements in the past, such cases are inadmissible before the ICC. That’s because according to the core principle of “complementarity” under the Rome Statute which governs the ICC, the ICC is not supposed to rule on issues where there are genuine proceedings before national courts.
The submission by 9 Bedford Row with support from The Lawfare Project and UKLFI, comes after the Office of the Prosecutor (OTP) of the ICC published its annual report on preliminary examinations for in December 2018. The report discloses that the OTP intends to complete its examination of “the Situation in Palestine” as early possible and is now at “Phase 3”, which is the stage in the process when it considers the admissibility of the situation. At this point the OTP will consider both gravity and complementarity, notwithstanding that no substantive determinations with respect to jurisdiction have yet been made.
Should the OTP decide to investigate an Israeli settlements case it could violate the complementarity principle.
Stephen Kay QC said:
“Israel has a functioning, independent, institutional framework which permits investigation of conduct that would be covered by potential settlements cases at the ICC. Under the core ICC principle of complementarity, prosecutors should accept the validity of decisions taken by Israel’s national courts. If they are not prepared to do that then the burden of proof will be on them to say why.”
Brooke Goldstein, the Executive Director of The Lawfare Project, which supported the submission said:
“An ICC case on ‘settlements’ would totally ignore the fact that Israel’s courts have frequently ruled and continue to rule on these issues. It would be yet another attempt at applying double standards to Israel. Double standards inspire a lack of trust in the international legal system, and undermine the sanctity of international law. The Lawfare Project is proud to support this fresh legal approach to challenging lawfare attempts at circumventing the rule of law.”
Jonathan Turner, chief executive of UK Lawyers for Israel said:
“This excellent submission unpicks a number of basic fallacies in claims made by some NGOs in relation to Israel. Further work needs to be done to counter other serious misconceptions.”
The full Article 15 communication is available here: ARTICLE 15 COMMUNICATION_Situation in Palestine_settlements_complementarity_9BRi
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