Australia/Israel Review

Mr. Karim Khan, Chief Prosecutor of the ICC

Office of the Prosecutor, The Netherlands

Dear Mr. Khan,

Congratulations on your election as Chief Prosecutor of the ICC [International Criminal Court]. We are the Board members of the Friends of Israel Initiative, an independent body of former heads of government, cabinet ministers and others…

We are writing to urge you to re-evaluate the decision taken by your predecessor, Ms. Fatou Bensouda, to investigate Israel over “alleged crimes committed in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014.” As you are aware, the ICC’s Pre-Trial Chamber recently adjudged that the Court has jurisdiction over these allegations.

The Friends of Israel Initiative has opposed this investigation since a preliminary examination was initiated at the request of the Palestinian Authority in 2015. In addition to the substance of the allegations against Israel, which we firmly believe to be spurious, we have several other serious concerns. 

Israel is not a party to the Rome Statute and has not consented to the Court’s jurisdiction. The request for an investigation was made by an entity which is not a sovereign state within the terms of the Rome Statute, under which only sovereign states may delegate jurisdiction to the Court over their territory. This view is strongly supported by the government of the United States of America, as well as the governments of Rome Statute state-parties Germany, Austria, the Czech Republic, Hungary, Australia, Canada, Uganda and Brazil, as well as by leading international law scholars. 

In assigning itself jurisdiction, the ICC disregards and undermines the Oslo Accords, an internationally binding set of agreements that remain in force and continue to be recognized by both Israel and the Palestinian Authority. Under the Oslo Accords, the Palestinian Authority has no criminal jurisdiction over Israelis anywhere in the West Bank, the Gaza Strip or East Jerusalem. That jurisdiction, by agreement of both Israel and the Palestinian Authority, remains with Israel alone. Therefore, even if it were a state-party, the Palestinian Authority could not delegate any such authority to the ICC.

As you know, the ICC is mandated to investigate and try the gravest crimes of concern to the international community, as a court of last resort, when national jurisdictions are unable or unwilling to do so. This does not apply to Israel, which has a long-established and internationally respected legal system with a track record of investigating such crimes and prosecuting individuals when appropriate.

In addition to these concerns over jurisdiction, we believe that, by commencing this investigation, the ICC would actively undermine the prospects for peace between Israel and the Palestinians. Recent months have seen unprecedented progress in the Middle East peace process, with peace agreements signed between Israel and the UAE, Bahrain, Morocco, and Sudan. Building on these developments, the new US administration may now have an opportunity to further negotiations between Israel and the Palestinians. For an international body with the prestige of the ICC to support the abrogation of the Oslo Accords and unilaterally endorse one side’s claims in a bilateral dispute would cripple the likelihood of future negotiations.

Finally, we have profound concerns over the effects of such an investigation on the ICC’s judicial integrity and, therefore, on its mandate of achieving international criminal justice, which is of the utmost importance in an increasingly turbulent world. It is essential that the Court continue to observe the tenets of international law scrupulously, to operate within the mandate proscribed for it by the Rome Statute, and to avoid acting through political motivation or through the appearance of such. 

We believe that pursuit of this fundamentally flawed investigation jeopardises all of these objectives. We agree with the words of the ICC Pre-Trial Chamber’s presiding judge, Peter Kovacs, who wrote: “I find neither the Majority’s approach nor its reasoning appropriate in answering the question before this Chamber, and in my view, they have no legal basis in the Rome Statute, and even less so, in public international law.”

We wish you every success in your new role as ICC Chief Prosecutor…

Hon. Stephen Harper, Chairman, former Prime Minister of Canada; Hon. José Maria Aznar, Honorary Chairman, former President of Spain; Lord William David Trimble, former Prime Minister of Northern Ireland, Nobel Peace Prize winner in 1998; Hon. John Howard, former Prime Minister of Australia; Hon. Luis Alberto Lacalle, former President of Uruguay; Mr. John Baird, former Minister of Foreign Affairs of Canada; Mr. Karl-Theodor zu Guttenberg, former Defense Minister of Germany; Ambassador Giulio Terzi, former Minister of Foreign Affairs of Italy; Mr. Bill Richardson, former Governor of New Mexico; Ambassador Zoran Jolevski, former Minister of Defense and Ambassador of Macedonia; Mr. Uri Rosenthal, former Minister of Foreign Affairs of the Netherlands; Mr. Carlos Bustelo, former Minister of Industry and Energy of Spain; Mr. Elliot Abrams, former United States Special Representative for Iran and Venezuela; Col. Richard Kemp, former British Army Commander; Professor Andrew Roberts, British historian, visiting professor at King’s College London; Mr. Carlos Alberto Montaner, Exiled Cuban author and journalist; Mrs. Fiamma Nirenstein, Italian journalist, author and politician; Mr. George Weigel, Distinguished Senior Fellow of the Ethics and Public Policy Center; Mr. Rafael Bardají, Executive Director, Friends of Israel Initiative.