The International Criminal Court (ICC) is back on the warpath with its latest effort to do the bidding of a non-state actor (Palestine) in order to damage a non-member state (Israel).  This time, the Court action was a split decision ruling on jurisdiction over events in the "territories" dating back to 2014.  As international law scholar Eugene Kontorovich simply put it:

The ICC's decision about jurisdiction over Israel has no basis in international law.  It accepts jurisdiction over a non-member state at the behest of a member that is not a state: a one-ride ticket for Israel.

The decision of the Court is not a great surprise.  

For years, the Palestinians have sought to use international organizations and international courts to fight Israel, rather than negotiate directly for a peace agreement with it.  The ICC has been one of the favored venues for this strategy of attempting to criminalize Israel's actions, and the Court has regularly shown over the years its greater interest in cases targeting Western democracies than those investigating rogue regimes or terror organizations.  

The ICC was established as a kind of court of last resort for the pursuit of justice against the worst perpetrators of mass atrocities, countries where no fair judicial process existed to investigate, charge, hold court proceedings, and judge and sentence the offenders.  But its actions, especially in recent years, seem to suggest a particular delight and preference for targeting Israel, which like the United States is not a member state of the ICC.  More to the point, Israel has an established judicial system and procedures and processes to consider the kind of wrongdoing the ICC was targeted to address.

Legal scholar Alan Dershowitz offered this assessment of the ICC action regarding Israel:

According to British military expert Richard Kemp, "No country in the history of warfare has done more to avoid civilian casualties than Israel did in Operation Cast Lead." Israel's Supreme Court has imposed daunting restrictions on its military and has provided meaningful remedies for criminal acts committed by individual Israeli soldiers. The role of the International Criminal Court, according to the treaty, is to intrude on the sovereignty of nations only if those nations are not capable of administering justice. The principle of "complementarity" is designed to allow courts in democratic nations, like Israel, to address their own problems within the rule of law. Only if the judiciary totally fails to address these problems does the court have jurisdiction — even in cases involving parties to the treaty, which Israel is not.

Independent of the current controversy, the ICC has been on a wobbly footing for years, enduring regular condemnation in various areas.  In the roughly 20 years since it was established, the Court has spent nearly $1.5 billion Euros and secured only five criminal convictions.

ICC headquarters complex in the Hague.  A lot of buildings for only five cases.
Photo credit: OSeveno CC BY-SA 3.0 license.

Many key member states have been critical of the Court.  Late in 2020, an extensive Independent Expert Review of the ICC resulted in the release of a lengthy report calling for extensive reforms of the Court.  The report focused on human resource problems, ethical issues and conflicts of interest, excess spending, efficiency and fairness of the judicial process among a host of issues requiring more than 300 pages of documentation of problems and suggested reforms.  The decision this week might take some of the internal pressure off by attracting renewed support from the large international club of Israel-bashers.

The court's latest decision immediately came under fire from various countries.  The U.S. State Department wasted no time challenging the Court's action:

Today, the International Criminal Court (ICC) issued a decision claiming jurisdiction in the West Bank, East Jerusalem, and Gaza, while expressly recognizing the serious legal and factual questions that surround its ability to do so.

As we made clear when the Palestinians purported to join the Rome Statute in 2015, we do not believe the Palestinians qualify as a sovereign state, and therefore are not qualified to obtain membership as a state, or participate as a state in international organizations, entities, or conferences, including the ICC.

We have serious concerns about the ICC's attempts to exercise its jurisdiction over Israeli personnel.  The United States has always taken the position that the court's jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council.

Australia released a similar statement:  

Australia has deep concerns with the ruling of the Pre-Trial Chamber of the International Criminal Court that it has jurisdiction in relation to the 'Situation in Palestine'.

Australia does not recognize a 'State of Palestine', noting that matters relating to territory and borders can only be resolved through direct negotiations between Israel and the Palestinians.

Dershowitz agreed with these rebukes of the decision on jurisdiction:

The highly politicized International Criminal Court just declared statehood for Palestinians. They did it without any negotiation with Israel, without any compromise, and without any recognized boundaries. They also did it without any legal authority, because the Rome Statute, which established the International Criminal Court, makes no provision for this criminal court to recognize new states. Moreover, neither Israel nor the United States ratified that treaty, so the decisions of the International Criminal Court are not binding on them." He added: "As the dissenting judge so aptly pointed out, the Palestine decision is not based on existing law. It is based on pure politics. And the politics of the majority decision is based in turn on applying a double standard to Israel — as the United Nations, the International Court of Justice and other international bodies have long done.

The dissenting Judge Peter Kovacs issued a lengthy opinion stating that the majority's approach had "no legal basis in the Rome Statute, and even less so in international law," as well as that "acrobatics with provisions of the Statute cannot mask legal reality."  This dissent mirrored briefs submitted by several leading State Parties to the Rome Statute, including Germany, Australia, Austria, the Czech Republic, Hungary, Uganda, and Brazil.

The latest decision by the ICC should be viewed as a warning to both member states and non-member states, and in particular Western democracies, that regardless of the quality and fairness of the judicial system that is operative in their own countries, the ICC might be coming for them if the political payoff for doing so is popular among the right parties.