Army's top lawyer says ICC has no jurisdiction
Haaretz newspaper recently reported that at a recent international conference on the military prosecution on the laws of war, the army’s chief prosecutor, Brig. Gen. Sharon Afek, stated that the International Criminal Court (ICC) has no jurisdiction to discuss matters concerning the Israeli-Palestinian conflict because “Israel is a law-abiding country, with an independent and strong judicial system, and there is no reason for its actions to be scrutinized by the ICC.”
According to the report, Afek also stated that instead of being “a last resort for cases of mass massacres, the ICC is sidetracked from dealing with the main issues for which it was founded and exceeds its legal jurisdiction.” The report then quoted Afek discussing the challenges facing the Israeli military when dealing with the weekly March of Return demonstrations on the Gaza border.
While these comments were largely confined to the border demonstrations, they appear to understate the potential for legal exposure created by a number of Israeli policies currently being implemented in the West Bank. Take for example the decades long practice of transferring Palestinian prisoners from the West Bank to prisons inside Israel. Not only is this practice prohibited and criminalized under articles 76 and 147 of the Fourth Geneva Convention (ratified by Israel in 1951), it is also classified as a war crime under article 8(2)(vii) the Rome Statute of the International Criminal Court (signed by the Palestinian Authority in January 2015).
Unlike most issues to do with the conflict, there is no relevant dispute of fact when it comes to the transfer of Palestinian prisoners. According to monthly data issued by the Israeli Prison Service, 83 percent of adult Palestinian prisoners and 46 percent of child prisoners are currently being transferred. This policy affects approximately 6,000 individuals annually and requires many participants to bring it into effect – from officials in the government and military, right down to the individuals driving the vehicles back and forth across the Green Line.
The issue of transferring prisoners in violation of international law has twice been to Israel’s Supreme Court, most recently in 2010 (Yesh Din v Minister of Defence
). In rejecting the petition, the Court followed its own precedent and ruled that where domestic Israeli legislation (permitting transfer) was incompatible with international law (prohibiting transfer), domestic legislation should prevail. While this reasoning might satisfy Israeli courts, it ignores the provisions of article 27 of the Vienna Convention on the Law of Treaties which says, in effect, that no State can rely on provisions of its domestic law in order not to fulfil a treaty obligation. What the Supreme Court decisions also demonstrate is that there are no legal remedies available in Israel for this violation thus requiring the intervention of an international court of last resort.
Another feature of this issue that would potentially be of interest to the ICC is that while the Israeli government officially takes the position that the Fourth Geneva Convention does not apply de jure
to the West Bank, (hence, according to this reasoning, settlements are not illegal), the military continues to hand out information sheets
relying on the Convention as the legal basis upon which Israel can continue to prosecute Palestinians in military courts.
While it may be understandable that Israel’s chief military prosecutor would seek to defend his country’s position on the world stage, it is also incumbent on these officials to warn Israelis who have, over the course of the past 52 years, either been directly involved in this transfer process, or those who have indirectly aided and abetted the implementation of these policies. To simply ignore the potential for legal exposure provides no legal protection to those implementing these policies.