Israel Would View ICC Investigation as “War” by the PA

Israel Would View ICC Investigation as “War” by the PA

A February 2010 cable from the US embassy in Tel Aviv to the State Department concerning a discussion with the IDF’s Military Advocate General about the Palestinian Authority’s request for the ICC to investigate Operation Cast Lead contains the following remarkable paragraph (emphasis added):

Summary: IDF Military Advocate General Mandelblit updated the Ambassador on February 17 on the progress of investigations into allegations of misconduct during Operation Cast Lead, including providing a preview of additional findings to be published before the March 24 Human Rights Council meeting. Mandelblit noted concern with the Palestinian Authority’s effort to undermine Israel through the International Criminal Court and hoped the U.S. would weigh in with both the PA and the ICC, and publicly state our view of the ICC’s lack of jurisdiction. He warned that PA pursuit of Israel through the ICC would be viewed as war by the GOI. No decision had been made regarding an independent commission to review the IDF investigations. Mandelblit noted what he viewed as the lack of political and popular will to initiate such an inquiry at this time, and suggested that given differences of opinion within the government, the question would be held in abeyance as his investigation progressed. End Summary.

I’m on record as being categorically opposed to the ICC investigating the situation in Gaza, because Palestine is not (yet) a state and is thus not entitled to accept the Court’s declaration under Article 12(3) of the Rome Statute.  But the cable is still disturbing and indefensible.  What will Israel’s response be to this “war” declared on it by the PA?  Will it use military force against the Palestinians (again)?  Will it attack Moreno-Ocampo and the rest of the staff in the OTP to prevent them from “undermining” Israel by investigating its potential war crimes?  (Along with Hamas’s potential war crimes, of course; the ICC investigates situations, not parties to a conflict.)

Describing the use of international institutions to vindicate basic human rights as “lawfare” is bad enough.  Describing it as actual “war” is appalling.

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Foreign Relations Law, International Criminal Law, International Human Rights Law, Middle East, National Security Law, Organizations
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Kevin:  in view of what is disclosed here, I agree.  If the ICC has jurisdiction and a case is properly brought before it, referral of a case cannot possibly be an act of “war,” nor would the rendering of an accused to the ICC by a state party that had custody of the person within its territory.
Imagine a referral of a matter, not to a court of law, but to the Security Council, the General Assembly, the Secretary General, or some human rights body — are these also claimed to be acts of “war”?
    This seems to be part of a more general pattern that we see with respect to other countries, including the Obama Administration, to avoid legal responsibility, to be above the law, immune from any incovenient criminal or civil sanctions in the name of a “sovereignty” that was never absolute and that was rightly and famously addressed by the IMT at Nuremberg when the Tribunal recognized that no state has authority to authorize violations of internaitonal law, the law upon which relative sovereignty rests, and that individuals have duties to the international community.

Mihai Martoiu Ticu

It’s just a trick to help Dinstein publish a revised edition of his book.


Its a bit scary to think how would things unfold if the UN vote on Palestine succeeds and Palestine (i.e. the “Non-Member UN Observer State” of Palestine) were to accede to the Rome Statute and submit the situation to the ICC.

Asaf Lubin
Asaf Lubin

Israel is not claiming immunity from charges or international investigations. The fact that Israel just recently allowed the United Nations to investigate allegations of unlawful use of force in the maritime incident with Turkey proves that when just claims are brought up by the international community, Israel accepts international intervention. However the Palestinian ICC move is part of a concerted politically motivated cynical effort to use international forums to bring Israel down to its knees. It is an attempt to take unilateral legal actions instead of attempting to resolve matters through dialogue. For example just recently when during a terrorist attack on Israel’s south three Egyptian soldiers were shot down by the border with Israel both states announced a joint investigation. This is the peaceful way to resolve conflicts. Lawfare is not. On top of that, I feel like you are being naive and turning a blind eye. Approximately 40% of all UN Human Rights Council Res. are against Israel. Not Sudan or North Korea or Syria or Lybia or Iran or Nigeria. No, Israel. Israel has all the reasons in the world to believe specific countries, mostly Arab, are using legitimate international forums to de-legitimize Israel’s existence. Another example- Israel… Read more »


Jordan Paust how do we solve the vexing problem of convincing veto-carrying powerful sovereign states to relinquish any of their own power?  This is the crux of the issue of the world’s problem with lack of int’l law enforcement. I think the answer lies in mobilizing the population against the intransigence of the leadership of these countries which block int’l law & order as a matter of routine (US, Russia, China).  The leadership will never budge but maybe people power could move them, that’s probably the only way, do you agree?

M. Gross
M. Gross

So, wait, why wouldn’t ICC detention of the citizens of non-party states be considered an act of war?
One simply can’t expect to kidnap other nations’ citizens and hold them against their will without retribution.