"When Israeli officials - whether ministers or government lawyers - propose
changing the course of Israel's policy on matters such as Khan al Ahmar to
accommodate the bias of the ICC and its prosecutor, they increase the
already high incentives for the ICC to prosecute Israelis"
Prof. Avi Bell slams Min Katz's delaying evacuation of Khan al-Achmar due
superfluous possible UK initiative to reform the International Criminal
Court
Dr. Aaron Lerner 23 December 2019
Abraham (Avi) Bell is a Professor of Law at the Bar-Ilan University Faculty
of Law and the University of San Diego School of Law

Question to Prof. Avi Bell: Yesterday FM Katz explained in an interview on
Reshet Bet that Israel was postponing the evacuation of Khan al-Achmar
until after an initiative to reform the International Criminal Court in the
Hague succeeded to render the court irrelevant for Israel. According to the
initiative, Katz explained, only those states that are a member of the court
could be subject to action of the court.
https://youtu.be/X2AZHnlsTlk for the interview

Do you believe that it is reasonable to expect that the UK will succeed in
this initiative?

Reply by Prof. Avi Bell:

I'm unaware of the UK reform to which FM Katz was referring, and cannot see
why such a reform would be relevant. According to the Rome Statute - the
treaty that defines the authority of the International Criminal Court - the
court has no authority to pursue it proposed criminal investigation against
Israelis, and no reform is necessary to take away the court's authority. At
the same time, it is obvious to all observers of the Court that the
Pre-Trial Chamber of the ICC, which has been asked to rule about
jurisdiction, will ignore the law and decide, as the ICC Prosecutor already
decided five years ago, that the ICC can pursue criminal charges against
Israelis. No change in the law will change the ICC’s decision; the ICC's
decisions have been, and will continue to be based on institutional and
international politics and bias.

It is a mistake to think that any Israeli policy decision like evacuating
Khan al Ahmar or applying Israeli law to the Jordan Valley has anything to
do with the future of the criminal investigation, and it is surprising and
disappointing to hear Israeli officials making such a claim. The ICC has
been on the course to bring criminal charges against Israelis since the
Prosecutor recognized the PLO as a state party in January 2015, and the ICC
will only reconsider its decision to prosecute Israelis for non-crimes if
Israel were to adopt an approach like that of the United States - preventing
all contact or cooperation (even informal) with the ICC and its prosecutor,
combined with an uncompromising political and diplomatic campaign against
the ICC. The US was successful in creating political pressure that forced
the ICC to drop plans of criminal investigations against American soldiers.
Israel, by contrast, continues to provide the ICC with international
legitimacy by treating it as a legal institution to which one makes legal
arguments.

When Israeli officials - whether ministers or government lawyers - propose
changing the course of Israel's policy on matters such as Khan al Ahmar to
accommodate the bias of the ICC and its prosecutor, they increase the
already high incentives for the ICC to prosecute Israelis. The ICC has very
few successes to point to, and when Israel shows the world that the ICC is
forcing Israel's hand in policy decisions, Israel provides proof that the
biased and unprofessional ICC is actually an effective tool.

Question: If you think they have a reasonable chance of succeeding, what
kind of timeframe would you expect this to take? Is this something to be
concluded in the coming months or is this going to take years?

Answer: As I said, I'm unaware of the UK reform to which FM Katz was
referring, and cannot see why such a reform would be relevant.
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