”Israel is the only non-member state being potentially investigated by the ICC on behalf of an ICC member which is not a state (Palestine).”

“Our legal view on jurisdiction of the ICC regarding alleged crimes committed in the Palestine territories remains unchanged. The court has no jurisdiction, because of the absence of the element of Palestinian statehood required by international law.”

This statement was made by German Foreign Minister Heiko Maas following last week’s ruling by the The Hague-based International Criminal Court’s pre-trial chamber that it has the jurisdiction to investigate war crimes in Gaza, the West Bank and east Jerusalem allegedly committed since June 13, 2014. This could include possible lawsuits against high-level officials as well as against IDF soldiers and commanders. The investigation includes Operation Protective Edge and settlement activity.

Israel has denounced the ruling as political and the US objected. Israel and the US are not members of the ICC, the Palestinian Authority joined the court in 2015.

”Israel is the only non-member state being potentially investigated by the ICC on behalf of an ICC member which is not a state (Palestine),’’ noted Prof. Eugene Kontorovich, from the  George Mason’s Antonin Scalia School of Law, an expert in constitutional and international law, during a briefing for journalists organised by Europe Israel Press Association. ”There is no situation like that in the world, and there never will be,” he added.

‘‘I think this case is an impediment and obstacle in reaching a solution to the Israeli-Palestinian conflict because the court is making a political question from a criminal issue,” said Pnina Sharvit Baruch, research associate at the Israeli Institute for National Security Studies (INSS).  

Israel’s Attorney-General Avichai Mandelblit has reiterated Israel’s position on the court when he said: “There is no such thing as the State of Palestine according to international law. Eight significant countries joined our position.According to the Oslo Accords, there is no State of Palestine, it doesn’t have borders and it doesn’t have the jurisdiction to judge Israelis. This is an unfortunate and mistaken decision.”

The German Foreign minister said that Germany supports the ICC in general, as well as the establishment of a Palestinian state. But he said that “the ICC  has no jurisdiction because of the absence of the element of Palestinian statehood required by international law.”

One day after speaking with Israeli Foreign Minister Gabi Ashkenazi, Maas added that Germany’s positions on the ICC and the Middle East peace process in general “remain unchanged” as well, and it supports “the establishment of a future Palestinian state as part of a two state solution negotiated by Israelis and Palestinians.”

Hungarian Foreign Minister Péter Szijjártó also expressed his opposition to the ruling saying “Hungary does not agree with this decision. During the legal procedure, we already signaled that, according to our position, Palestine does not have criminal jurisdiction over Israeli citizens.

“We have always supported Israel’s right to defend itself and we believe that peace in the region can only be achieved through negotiations based on mutual respect,” Szijjártó added. “The decision of the ICC does not take us closer to this.”

Cyprus Foreign Minister Nikos Christodoulides left the ICC out of his statement on the call with Ashkenazi, saying they had a “timely and useful exchange of views” and “discussed bilateral cooperation, including on COVID-19, and latest developments in our region.”

Several other countries, including Australia, the Czech Republic, Austria and Canada, have also expressed their opposition to an ICC investigation of Israel.

What says the EU ?

The European Union said that it ‘’has taken careful note of the decision by the International Criminal Court.’’  ‘’ Both the ICC and its Prosecutor are independent and impartial judicial institutions with no political objectives to pursue,’’ EU spokesperson Peter Stano told European Jewish Press.

‘’The EU is a strong supporter of the ICC and of its independence.  All EU Member States have ratified the Rome Statute,’’ he said.

He reaffirmed the EU’s ‘’long-standing position in support of a negotiated two-state solution based on the internationally agreed parameters.’’ ‘’In order for this to be possible, unilateral actions from either side should be avoided and international law upheld,” the spokesperson added.

US State Department spokesperson Ned Price said: “We do not believe the Palestinians qualify as a sovereign state… We have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. The United States has always taken the position that the court’s jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council.”