According to Israeli and international sources, prosecutors at the International Criminal Court (ICC) Considering issuance of warrant against Israeli and Hamas leadership based on the October 7 Hamas attack and Israel’s response.Member of Parliament Rashida Tlaib (Michigan Democratic Party) demanded arrest Israeli Prime Minister Benjamin Netanyahu’s genocide charges.
But there’s a problem. The ICC is prohibited by its founding treaty from investigating any individual from a state willing and able to conduct a genuine investigation against that person. Israel is conducting an ongoing investigation into the alleged war crimes and will continue to do so.
One of the central tenets of the rule of law is that courts must abide by the limits on their jurisdiction imposed by the authorities that created them. The International Criminal Court is roman law, severely limited its jurisdiction by the principle of subsidiarity. This rule explicitly denies the ICC the power to act as lead investigator or prosecutor of individuals subject to legitimate investigation and prosecution by states.
The ICC will only secure complementary jurisdiction if the state with primary jurisdiction is unwilling or unable to conduct a fair and thorough investigation.
The signers of the Rome Statute envisaged a complete or partial collapse of a country’s judicial system. Unable to “obtain the accused or key evidence and testimony.” Or, they are “unable to proceed” due to a lack of “sufficiently qualified personnel to carry out a genuine prosecution.” The signatories of the Rome Statute did not envisage primary scrutiny of Western democracies such as Israel, which the Supreme Court holds. called “The most active judicial institution in the world’s developed countries”
Unless the standard of admissibility under Article 17 of the Rome Statute is met, the ICC has no authority whatsoever to investigate or prosecute alleged crimes that may or will be investigated by Israeli authorities. Doing so would violate their own country’s charter and supersede their own laws.
by Preamble to the Roman Statute, the International Criminal Court “shall complement the criminal jurisdiction of States.” Under the principle of subsidiarity, the ICC only has jurisdiction when a state is “unwilling or unable to undertake a genuine investigation or prosecution.”
This was the original intention of the framers of the Rome Statute.Michael Riesman and Mahnoush Alsanjani as jurists Point out“Before and during the Rome negotiations…the courts were only concerned with countries that were reluctant or refused to prosecute, those that filed spurious prosecutions in government cronies, or those that were simply unable to prosecute. It was assumed that there would be.”
If the International Criminal Court had been given jurisdiction to initiate investigations and prosecutions when states with primary jurisdiction had the will and ability to investigate war crimes themselves, many signatories would have I wouldn’t have agreed to the rules.
Israel’s judicial system is one of the best in the world, and its Supreme Court is among the most highly regarded in Western democracies. Its judicial system has consistently protected the civil liberties of its people, including minorities. It put soldiers and settlers on trial, and even prosecuted former (and current) political leaders, including three prime ministers and a president.
Under any reasonable definition of Article 17, Israel’s judicial system cannot be considered “broken.” The ICC cannot launch an investigation against Israel because Israel is willing and able to investigate and, if necessary, prosecute all allegations of war crimes.
Furthermore, Israel is not a party to the Treaty of Rome, and neither Hamas nor the Palestinian Authority is a state. But even if the ICC were able to overcome these hurdles (as it claimed), it would not have the ability to be held responsible in its own country, nor would it have the unique ability to investigate alleged crimes by individuals who are held responsible. I can’t get over the wall.
Israel is not Hamas, and the ICC rules are not the same for a democratic state living under the rule of law as for a terrorist group living under the rule of law. This distinction is central to the legitimacy of the ICC and its subsidiarity rules. Without this recognition, the ICC will become a “court” of partisan politics rather than a neutral court of objective law.
Alan Dershowitz is professor emeritus at Harvard Law School and author of The War on the Jews: How to End Hamas’s Barbarism. Democrat Andrew Stein served as president of the New York City Council from 1986 to 1994.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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