Israel received a letter from International Criminal Court Prosecutor Fatou Bensouda last weekend formally notifying the country of the opening of a full war crimes probe and giving it 30 days to respond.
Since then, various related ministers, ministries and the national security council have met and been consulting on the issue, but no decision has been taken either to respond and engage, or to shun the ICC.
Channel 13 first reported the letter late Wednesday, and The Jerusalem Post has confirmed it.
Engaging would allow Jerusalem to impact the process, as the probe is still far from issuing indictments and could still end without arrests.
Ignoring the ICC would allow Israel to maintain its stance of not legitimizing the process.
A middle path of partial informal engagement could also be explored.
Meanwhile, the Strategic Affairs Ministry on Thursday unveiled a new website dedicated to presenting Israel’s position against ICC jurisdiction over IDF conduct or settlement-related issues.
The website features interviews with leading international lawyers in Israel and abroad who support Jerusalem’s contention that the ICC lacks jurisdiction over Israelis.
It is being launched following the ICC Pre-Trial Chamber’s February 5 endorsement of Bensouda’s desire to open a full war crimes probe against IDF conduct during the 2014 Gaza War, the 2018 Gaza border conflict and the settlement enterprise.
Bensouda formally opened her probe on March 3.
According to the Israeli website, it “compiles and presents reliable information regarding the International Criminal Court’s examination in connection with the Palestinian complaint in the so-called ‘Situation in Palestine.’”
Established in 2002, the ICC’s “mandate is to end impunity for the most heinous crime of concern to the international community,” according to the website. “The ICC was created to act as a court of last resort with the capacity to prosecute individuals, when national jurisdictions for any reason are unable or unwilling to do so. The Court was never intended to pursue democratic states with robust and effective legal systems.”
In addition, the website says that “‘Jurisdiction’ is the authority of a court to make decisions and judgments. It plays a crucial role in defining competence in order to prevent abuse of a judicial process and to protect the law from both power and populism.
“The ICC lacks jurisdiction over Israel, as only sovereign states can delegate criminal jurisdiction over their territory to the Court. The Palestinian Authority clearly does not meet the criteria for statehood under international law and the Court’s Statute,” it says.
“Israel has valid legal claims over the same territory in relation to which the Palestinians are seeking to submit to the Court’s jurisdiction,” the website continues. “This was explained in a detailed legal memorandum published by Israel’s Attorney-General, and supported by seven states, parties to the ICC, as well as by leading international law scholars during the proceedings before the Pre-Trial Chamber.”
Furthermore, “The recent ICC ruling approving the prosecutor’s position on jurisdiction contravenes accepted facts and well-established principles of international law. The decision is the direct outcome of a politicized process and an erroneous reading of the court’s statute ... It should deeply concern all who care about the court and international criminal justice.”
In contrast, the ICC has said that “Palestine” has been given the status of a state by a number of UN organizations, including the court’s own Assembly of State Parties.
Based on this, the court has said it has not resolved the issue of whether Palestine is a state for other international law purposes, but that it is a state for ICC purposes.