ICC clears way to probe Israeli ‘war crimes.’ What is Canada’s role?

International Criminal Court

In a groundbreaking ruling than has rankled Israel and Jewish advocacy groups, the International Criminal Court (ICC) has found that its jurisdiction extends to the Palestinian territories and it may thus investigate Israel for war crimes.

The Hague-based court on Feb. 5 approved its chief prosecutor’s request to open legal proceedings against Israel and Hamas on suspicion of committing war crimes.

But first, the court had to determine whether its jurisdiction extends to Palestinian lands. It found that it does, rejecting Israel’s argument that the ICC can exercise criminal jurisdiction only over sovereign states.

The 2-1 decision cleared the way for ICC Chief Prosecutor Fatou Bensouda to open a war-crimes probe into IDF actions in the West Bank, East Jerusalem, and the Gaza Strip, arising from Israel’s Operation Protective Edge in 2014, the 2018 Gaza border protests, and settlement activity.

In ruling that its authority extends to Palestinian territories, the court stopped short of declaring Palestine an independent country, saying it was not determining “matters of statehood that would bind the international community” and that its ruling on jurisdiction is “neither adjudicating a border dispute nor prejudging the question of any future borders,” according to a report in Ha’aretz.

Canada’s statement on the matter was typically balanced. This country “strongly supports” the ICC “and the important work that it does as a key pillar of the rules-based international order. Canada continues to respect the independence of its judges and of the ICC prosecutor,” said a Feb. 7 statement from Foreign Affairs minister Marc Garneau.

Repeating long-held policy, the statement added that the creation of a Palestinian state “can only be achieved through direct negotiations between the parties.”

Until such negotiations succeed, Canada “does not recognize a Palestinian state and therefore does not recognize its accession to international treaties, including the Rome Statute of the International Criminal Court.” Canada has communicated this position to the ICC “on various occasions.”

It did just that a year ago, when Israel, which is not a member of the ICC, asked Ottawa to submit Canada’s position to the court, following a preliminary report by Bensouda that there was a “reasonable basis” to investigate Israeli soldiers for war crimes against Palestinians. Canada complied with the Israeli request.

Only a few weeks before, in late 2019, Israeli Prime Minister Benjamin Netanyahu wrote to Prime Minister Justin Trudeau.“

In light of our special relations and the steadfast friendship between our countries, I urge you to publicly condemn this erroneous decision, to acknowledge there is not a Palestinian state, that the court has no jurisdiction in this matter, which involves political issues to be determined by the parties, and to voice your deep concerns regarding its dangerous ramifications to the court and the region,” Netanyahu’s letter to Trudeau implored.

Asked by The CJN whether Canada would cooperate with a probe of war crimes allegedly committed by a friend and ally; how Canada’s non-recognition of a Palestinian state figures into its role; and whether Canada will seek intervener status in the case so it could submit legal arguments in Israel’s favour, as other countries have indicated, Global Affairs replied: “We have nothing to add beyond the statement issued by Minister Garneau on Feb. 7.”

(Australia’s statement was blunter: The ICC “should not exercise jurisdiction in this matter.”)

Michael Chong, the Conservative foreign affairs critic, said his party is “deeply concerned” about the ICC’s claim of jurisdiction. He echoed Ottawa’s official view that a Palestinian state “must be achieved by direct negotiations between the two parties,” and does not recognize a Palestinian claim to statehood.

He said the Tories reiterate their support for a two-state solution.In a tweet, the Centre for Israel and Jewish Affairs said, “like Canada, we disagree with the court’s ruling. The (ICC) does not have jurisdiction. This politically motivated decision threatens to further undermine the credibility of this important institution.”B’nai Brith Canada, on the other hand, called on Canada to oppose the ICC on this matter.

The organization said it fully endorses the position of Israel and Canada that the court has no jurisdiction to investigate alleged war crimes, “not least because there is no sovereign Palestinian state that could delegate to the court criminal jurisdiction over its territory and nationals,” B’nai Brith noted in a statement.

At the same time, Canada needs to deal with the fact that membership in the ICC “imposes” on states a duty to cooperate with the court.

B’nai Brith argued that Canada should not co-operate with the ICC in any investigation or prosecution of crimes allegedly committed by Israeli troops, pointing out that because Canada does not recognize Palestine as a state, it should not consider itself bound by a ruling based on the opposite.

It is “irrefutably clear” that the Palestinian Authority is not a state, argued David Matas, B’nai Brith’s senior legal counsel, “despite overtly political efforts to describe it so.” The PA “is seeking to delegitimize Israel rather than negotiate peace with Israel. This is unacceptable.”

Canada played a central role in the court’s establishment in 2002 and contributes about five percent of its annual funding, or about $10 million.In Israel, the ICC announcement was roundly denounced, with Netanyahu saying the court “proved once again that it is a political body and not a judicial institution.”The ICC “ignores real war crimes, and instead persecutes Israel, a country with a stable democratic regime that holds up the rule of law and is not a member of the court,” Netanyahu said.

In Ottawa, the Israeli Embassy’s Chargé d’Affaires, Ohad Nakash Kaynar, slammed “a politicized court, which assumes jurisdiction where it has none, following claims far from its mandate, will only serve injustice. The case for Israel today could be for any nation tomorrow.”

But it will be a long time before concrete action is seen, noted Prof. Yuval Shany of the Israel Democracy Institute in Jerusalem.While a criminal investigation of Israel is “an existing reality,” there is “a long way to go before the investigations mature into indictments against specific individuals and arrest warrants,” Shany explained, “and by then, the prosecution will also have to formulate a position on whether IDF internal investigations are sufficient to prevent the prosecution of soldiers.”

Even so, a Ha’aretz report on Feb. 7 said “hundreds” of senior Israeli security officials, past and present, are expected to be called in for briefings in the wake of the court’s ruling, and that a number of ICC member states have agreed to give advance warning to Israel of any intent to arrest Israelis on their arrival in those countries or if a request for an arrest warrant is issued against them.

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