Leading Lawyers Submit Evidence To ICC, Questioning Its Jurisdiction In Israeli Settlements Cases

The Lawfare Project

The Lawfare Project

Top lawyers specializing in cases before the International Criminal Court (ICC) have filed a submission questioning the admissibility of cases regarding Israeli settlements. Steven Kay QC and Joshua Kern of 9 Bedford Row chambers in London made the submission with support from The Lawfare Project and UK Lawyers for Israel (UKLFI). An article regarding the submission is available here.

The submission emphasizes that the Israeli Supreme Court (sitting as the High Court of Justice) plays an active role ruling on matters relating to Israeli settlements. Because Israel’s own courts already rule on the issue and have issued several landmark rulings on settlements in the past, such cases are not admissible before the ICC. That is because—according to the core principle of “complementarity” under the Rome Statute, which governs the ICC—the ICC is not supposed to rule on issues where there are genuine proceedings before national courts.

The submission by 9 Bedford Row, with support from The Lawfare Project and UKLFI, comes after the Office of the Prosecutor (OTP) of the ICC published its annual report on preliminary examinations in December 2018. The report discloses that the OTP intends to complete its examination of “the Situation in Palestine” as early possible and is now at “Phase 3”, which is the stage in the process when it considers the admissibility of the situation. At this point, therefore, the OTP needs to consider both the gravity and the complementarity of the situation.

Should the OTP decide to prosecute an Israeli settlements case, it could violate the complementarity principle.

Stephen Kay QC of 9 Bedford Row, who filed the submission, said:

“Israel has a functioning, independent, institutional framework which permits investigation of conduct that would be covered by potential settlements cases at the ICC. Under the core ICC principle of complementarity, prosecutors should accept the validity of decisions taken by Israel’s national courts. If they are not prepared to do that, then the burden of proof will be on them to say why.”

Brooke Goldstein, Executive Director of The Lawfare Project, which supported the submission, said:

“An ICC case on ‘settlements’ would totally ignore the fact that Israel’s courts have frequently ruled and continue to rule on these issues. It would be yet another attempt at applying double standards to Israel. Double standards inspire a lack of trust in the international legal system and undermine the sanctity of international law. The Lawfare Project is proud to support this fresh legal approach to challenging lawfare attempts at circumventing the rule of law.”

Jonathan Turner, Chief Executive of UK Lawyers for Israel, said:

“This excellent submission unpicks a number of basic fallacies in claims made by some NGOs in relation to Israel. Further work needs to be done to counter other serious misconceptions.”

A more detailed explanation of the points below.

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