Israel "reluctantly" voted against adoption of the Statute of the International Criminal Court. It did so because of the inclusion in the Statute of a crime consisting of the transfer by an Occupying Power of parts of its civilian population into the occupied territory, based on the provisions of Article 49 of the Fourth Geneva Convention of 12 August 1949 and Article 85(4)(a) of Additional Protocol I to the Geneva Conventions of 12 August 1949. The Israeli delegation at the Rome Conference attempted to justify its negative vote on the assumption that these provisions of the Geneva Conventions and their Protocol were not part of customary international law and therefore should not be included in the ICC Statute. Israel’s reasoning was not acceptable, since—as noted by a delegate from Syria—the provision in Protocol I “was approved by more countries than those present in this room today.” We argue that Israel should have justified its negative vote on quite a different basis. The offence as defined in the ICC Statute is committed by the "Occupying Power," which in this instance is the State of Israel, whereas one of the most fundamental decisions of the Rome Conference was that the ICC can only prosecute natural persons and not states or legal persons. For that very reason prosecution of the crime of aggression was kept on ice at the Rome Conference, because acts of aggression are committed by states and a Review Conference had to be convened to decide on what basis an act of state can be converted into individual liability of a natural person. For the same reason Israel should have based its concerns on the fact that the ICC cannot prosecute an Occupying Power. This article concludes that the State of Israel and Israeli citizens cannot be prosecuted in the ICC for the Jewish settlements in Palestinian Territories and that Israel should therefore ratify the ICC Statute.
* On February 5, 2021 the Pre-Trial Chamber I of the International Criminal Court (ICC) ruled that Palestine is a State Party to the Statute of the ICC and accordingly that the Court’s territorial jurisdiction in the Situation in Palestine extends to Gaza and the West Bank, including East Jerusalem (ICC-01/18). This article was written prior to this ruling.
Prof. Johan D. van der Vyver is an I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law; Extraordinary Professor in the Department of Private Law, University of Pretoria.
Suggested Citation: Johan D. van der Vyver, Israel and the International Criminal Court, 25 L. & Bus. – IDC L. Rev. (forthcoming 2021).
אזכור המאמר: יוהאן ד' ואן דר ויבר "ישראל ובית הדין הפלילי הבין-לאומי" משפט ועסקים כה (צפוי להתפרסם ב-2021).