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Deflating the Threat Posed by the International Criminal Court (ICC)


The International Criminal Court

Institute for Contemporary Affairs

Founded jointly with the Wechsler Family Foundation

Vol. 24, No. 9

  • Experience has shown that the International Criminal Court (ICC), in its efforts to appease the Palestinians and vilify Israel, has been willing to disregard facts and the law and even make decisions lacking any jurisdiction. The prosecutor and the court have been willing to adopt factual and legal positions devoid of any basis, recognizing a state that does not exist and inventing its geographical territory, in explicit contradiction of multiple legally binding documents.

  • Petitioning the UN to admit “Palestine” as a state is a fundamental breach of the Oslo Accords since it would have prejudged the outcome of the negotiations. Joining the ICC as a means to attack and delegitimize Israel further compounded the breach.

  • As part of the Oslo Accords, Israel agreed to waive substantial tax income in favor of the newly created PA. According to the agreements, Israel collects the tax income on behalf of the PA and transfers it every month. The PA income from these taxes rose from 4.8 billion shekels in 2010 to 11.3 billion shekels in 2022. From 2016 through 2022, the taxes collected by Israel accounted for 75%-79% of the PA’s annual tax revenue.

  • While Israel waived the income so that the PA would use the funds to further the goals of the Oslo Accords for the benefit of the Palestinians and to prevent incitement to terror and violence and combat terror, in practice, the PLO/PA uses the funds to bankroll all of its practices that breach the Oslo Accords.

  • From the outset, the PLO/PA has breached every single one of the commitments it made in the Oslo Accords. Yet Israel has continued to collect and transfer billions of shekels a year to the PLO/PA. Every month, Israel pays the PLO/PA for peace. Every month, the PLO/PA responds with terror and violence.

  • Israel should give the PLO/PA an ultimatum: choose adherence to the Oslo Accords and their ensuing funds from Israel or choose unilateralism, the UN, and the ICC, and lose all the funds from Israel. Israel cannot be expected to continue funding its own demise.


Rumors that the International Criminal Court (ICC) will issue arrest warrants against senior Israeli officials, including, potentially, Prime Minister Benjamin Netanyahu, other ministers in the government, and IDF personnel, are a cause for concern. If the rumors materialize, the move will cause substantial damage to Israel’s international standing, as well as limit the movement of the people subject to the warrants. If issued, the warrants would not reflect any genuine or legitimate suspicion that a crime has actually been committed, but rather, the warrants would be just another milestone achieved by the Palestinian leadership – the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) – to delegitimize Israel and politicize the court.


While the ICC is ostensibly a supranational judicial forum, experience has shown that in its efforts to appease the Palestinians and vilify Israel, the court has been willing to disregard facts and the law and even make decisions lacking any jurisdiction.


In the case of the ICC, Israel’s fight is more political than legal. Accordingly, the measures that Israel must take to deflate the threat posed by the ICC are political. Identifying and adopting the right move could entirely remove and negate the current threat and all future threats.


The Special Nature of the ICC and Its Perversion

The ICC is a special court that functions on the basis of state accession. Israel was an active participant in promoting the establishment of the court. Still, after the court’s foundational statute was hijacked and politicized to single out Israel specifically, the decision was made that Israel would not join the court.


So, if Israel is not a party to the court, how is the court considering wielding jurisdiction?


Regarding the United Nations, Israeli statesman Abba Eben famously quipped, “If Algeria introduced a resolution declaring that the earth was flat and that Israel had flattened it, it would pass by a vote of 164 to 13 with 26 abstentions.”


In 2012, the Palestinian leadership – the PLO and the PA – petitioned the United Nations to recognize the “State of Palestine.” While no such state actually exists, the UN General Assembly (UNGA) decided to grant “Palestine” the status of a Non-Member Observer State.


According to the UN Charter, the UN can only admit a new state if nine (including all five permanent members) of the 15 members of the UN Security Council recommend doing so, and that recommendation is adopted by two-thirds of the states who are members of the UNGA. The UNGA’s decision to grant “Palestine” the special status, which is shared only by the Holy See, circumvented these fundamental requirements.


Nonetheless, the Palestinian leadership then used the politically driven fallacy created by the UNGA decision, which referred to “Palestine” as a state, to join the ICC.


After being accepted to the court, Palestinian leader Mahmoud Abbas established a committee that included members of Hamas, the Popular Front for the Liberation of Palestine, and other internationally designated terror organizations to engage the court.1 Since then, the terror committee has closely cooperated with the ICC prosecutor, submitting hundreds, if not thousands, of complaints and reports. At one stage, the PLO/PA boasted that the terror committee had met on more than 80 occasions with the office of the Prosecutor.2


The Palestinian efforts bore fruit in December 2019, when the ICC Prosecutor announced that “following a thorough, independent and objective assessment of all reliable information available to my Office… I am satisfied that there is a reasonable basis to proceed with an investigation into the situation in Palestine.”3 There was just one problem.


When actual states are accepted into the UN, those states have clear borders. However, since “Palestine” does not really exist, it lacks any border. This raised the question of the court’s territorial scope regarding the non-existent state. In other words, before proceeding with the investigation, the Prosecutor first had to establish what geographical area should be seen as “Palestine,” in which there would then be an investigation into the crimes that had allegedly been committed therein.


Relying on a list of politically motivated resolutions of the UN General Assembly that have no legal value and a cacophony of other convoluted arguments, the ICC Prosecutor suggested that the court recognize Judea, Samaria, east Jerusalem, and the Gaza Strip as the territory of “Palestine.”


Despite fundamental flaws and objections to the Prosecutor’s position, including a brief4 submitted by the Jerusalem Center for Public Affairs together with other organizations, the majority decision of the Pre-Trial Chamber of the ICC, without any jurisdiction to do so, ruled that the fictional “State of Palestine” actually exists and that its borders are equivalent to the “Occupied Palestinian territory.”


The term “Occupied Palestinian territories” never appeared in any UN resolution between 1948 and 1967. Evidently, the areas in question, Judea, Samaria, east Jerusalem, and the Gaza Strip, that were occupied by Jordan and Egypt, respectively, do not appear to have been “Palestinian territories” until they were liberated by Israel in 1967. “Palestine,” based on the reasoning of the court, is the only country in the world that did not exist before it was “occupied.”5


In other words, to pander to the Palestinians and potentially drag Israelis before the ICC, the prosecutor and the court were willing to adopt factual and legal positions devoid of any basis, recognizing a state that does not exist and inventing its geographical territory in explicit contradiction of multiple legally binding documents.6


Joining the UN and the ICC were a Breach of the Oslo Accords

The Oslo Accords, a generic name for several agreements between Israel and the PLO from September 1993 through September 1995, are the fundamental framework that defines the relations between Israel on the one hand and the PLO/PA on the other. The agreements, which gave rise to the Palestinian autonomous rule over certain areas in Judea, Samaria, and the Gaza Strip,7 were temporary in nature and left many subjects open for further discussion as part of the “permanent status” negotiations.


While Israel never agreed that the still-open “permanent status” negotiations would give rise to a Palestinian state, the PLO has done its utmost to persuade the world to force the creation of the Palestinian state on Israel.8


Petitioning the UN to admit “Palestine” as a state was a fundamental breach of the Oslo Accords and one of the few commitments the PLO took upon itself since it would have prejudged the outcome of the negotiations. Joining the ICC as a means to attack and delegitimize Israel further compounded the breach.


Israel Funds Most of the PLO/PA Malfeasance

As part of the Oslo Accords, Israel agreed to waive substantial tax income in favor of the newly created PA. The idea was that the tax income would provide the PA with a stable income on which it could rely.9 According to the agreements, Israel collects the tax income on behalf of the PA and transfers it every month.


Based on information provided by the Israeli Ministry of Finance in response to a request under Israel’s Freedom of Information Law, the PA income from these taxes rose from 4.8 billion shekels in 2010 to 11.3 billion shekels in 2022.10


According to financial reports published by the PA Ministry of Finance,11 from 2016 through 2022, the taxes collected by Israel accounted for 65-68% of the PA’s entire annual net revenue and 75-79% of the PA’s annual tax revenue.


While Israel waived the income so that the PA would use the funds to further the goals of the Oslo Accords for the benefit of the Palestinians and to prevent incitement to terror and violence and combat terror, in practice, the PLO/PA uses the funds to bankroll all of its practices that breach the Oslo Accords.


Thus, on average, for the years 2016 through 2022, out of every 100 shekels the PLO/PA spent on its terror rewarding “Pay-for-Slay” policy,12 it received 65-68 shekels from Israel; out of every 100 shekels the PA spent on incitement to terror and the murder of Jews, it received 65-68 shekels from Israel; and out of every 100 shekels the PA spent on attacking Israeli leaders and IDF soldiers in the ICC, it received 65-68 shekels from Israel.13


Recommendations

From the outset, the PLO/PA has breached every single one of the commitments it made in the Oslo Accords. These breaches include actively inciting, incentivizing, and rewarding terror and joining international organizations as the “State of Palestine.” While the PLO/PA has systematically disregarded their commitments, Israel has continued to collect and transfer billions of shekels a year to the PLO/PA.

The reality created is analogous to a person buying a house. Every month, the purchaser pays the seller the total compensation for the house, and every month, the seller refuses to vacate the house and transfer it to the buyer.


In the Oslo Accords, Israel bought peace from the PLO/PA. Every month, Israel pays the PLO/PA for that peace. Every month, the PLO/PA responds with terror and violence, whether it be physical or legal violence.


This Reality Cannot Continue

Since the PLO/PA/”State of Palestine” joined the ICC, Israel has been on the defensive, trying to use predominantly legal arguments14 to stave off the impending disaster. While these efforts are commendable and should continue as a means to present Israel’s legal arguments to the world, considering the inherent bias of the ICC, they would appear to be insufficient.


For years, Israel’s leaders and IDF personnel have lived under the ever-darkening ICC threat. While masquerading as a legal threat, in reality, the ICC-Palestinian case is a political threat.


As Israel provides 65%-79% of the PLO/PA’s annual income, as presented above, the PLO/PA should never have been allowed to petition the UN for fictitious statehood and should certainly not have been allowed to join the ICC.


While the political threat of the ICC plowing forward with its biased investigation and ultimately issuing arrest warrants has been hanging over Israel for years, Israel avoided using its political and financial leverage to solve the problem.


Since the threat now appears to be metastasizing from a theoretical option to a real scenario, and since Israel has wasted valuable time allowing this threat to gather impetus, it must immediately make clear to both Palestinians and their supporters that time has run out.


To avoid substantial damage to Israel if the ICC issues the arrest warrants, Israel must cut the threat off at its roots. To do this, Israel should give the PLO/PA an ultimatum: choose adherence to the Oslo Accords and their ensuing funds from Israel or choose unilateralism, the UN, and the ICC, and lose all the funds from Israel. The PLO/PA must inform the UN that it waves its fictitious status and that the non-existent “State of Palestine” is withdrawing from the ICC or face the full force of the political and financial consequences.


Israel cannot be expected to continue funding its own demise.


Endnote

Whenever the idea of adopting measures that could potentially bring about the demise of the PLO/PA is raised, stakeholders and commentators question what alternatives to the PA exist. This is, of course, a fundamental question whose answer is well beyond the scope of this report. A microcosm of this question is now being discussed regarding the fate of the Gaza Strip in the aftermath of the October 7 massacre. While nothing has yet been set in stone, Israel’s government has repeatedly declared that the PLO/PA will have no further role in the Strip.


Notwithstanding this position, for the purposes of this report, it is no less relevant to first hear the response of the PLO/PA to the ultimatum. If the PLO/PA opts to immediately reform its behavior and cease and desist from its nefarious practices, the requirement to consider alternatives would be avoided. If, on the other hand, the PLO/PA adheres to its current path, opting for terror, death, and destruction over the path of peace, it will have clearly shown Israel and the international community that it has outlived its function and should be disbanded in favor of almost any other option.

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Notes

  1. Has the ICC prosecutor secretly colluded with the PA and already decided to prosecute Israel? A Jordanian news site says sohttps://palwatch.org/page/17849↩︎

  2. The PA met 80 times with the ICC – mocking and violating conditions for U.S. fundinghttps://palwatch.org/page/23847↩︎

  3. https://www.icc-cpi.int/news/statement-icc-prosecutor-fatou-bensouda-conclusion-preliminary-examination-situation-palestine↩︎

  4. https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2020_01023.PDF↩︎

  5. Preparing for the Next International Court of Justice Debacle, https://jcpa.org/preparing-for-the-next-international-court-of-justice-debacle/↩︎

  6. Including, inter alia, the 1948-1949 Armistice Agreements signed between Israel, Egypt, and Jordan, and the Oslo Accords.↩︎

  7. The agreements did not give the PLO/PA/any Palestinian entity any authority over the area known as “East Jerusalem.”↩︎

  8. Inter alia, by refusing multiple offers made by Israel and using violence and terror to force Israel to capitulate.↩︎

  9. As part of the agreement, Israel agreed to waive all import duties on goods ordered by Palestinians, all excise duties on fuels imported for the use of the Palestinians, VAT on all goods purchased by the Palestinians from Israel, income tax paid by Palestinians working in Israel (75% of the sum paid) and in the Israeli settlements (100% of the sum paid) and a few other minor direct taxes.↩︎

  10. A request to receive the same information for the financial year 2023 was partially fulfilled, with figures provided until the end of August 2023.↩︎

  11. The PA used to publish monthly budget performance reports on the site of the PA Ministry of Finance. While the PA has removed the site, the relevant reports are on record at the JCPA.↩︎

  12. https://jcpa.org/paying-salaries-terrorists-contradicts-palestinian-vows-peaceful-intentions/ ↩︎

  13. https://jcpa.org/video/how-does-the-palestinian-authoritys-economy-work/↩︎

  14. Other measures employed included promoting legislation in the United States, which limits the bulk of U.S. funding to the PA if the Palestinians “initiate an International Criminal Court (ICC) judicially authorized investigation, or actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.” See: What the PA expected the Biden Administration to do, and why those expectations have only been partially realizedhttps://palwatch.org/page/30994↩︎

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