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The International Criminal Court Lacks Jurisdiction over Israel in Gaza

(The Hill) Alan Dershowitz - The International Criminal Court (ICC) prosecutor is considering the issuance of warrants against Israeli leaders based on Israel's response to the Hamas attack of Oct. 7. But the ICC is precluded by the Rome Statute which created the court, which severely limited its jurisdiction by the rule of complementarity. This rule expressly denies the ICC the authority to be the primary investigator or prosecutor of any individual in a state that is willing and able to conduct a genuine investigation of that person. The signatories of the Rome Statute did not envision a primary investigation of a Western democracy, such as Israel. Thus the ICC simply has no authority to investigate or prosecute any alleged crime that can and will be investigated by Israeli authorities. To do so would be to violate its own charter and place itself above its own law. Israel's judicial system is among the best in the world and its Supreme Court is among the most highly regarded of any Western democracy. Its judicial system has put soldiers and civilians on trial and even prosecuted political leaders, including three prime ministers and one president. Since Israel is willing and able to investigate and prosecute any allegations of war crimes, the ICC is precluded from initiating an investigation against Israel. The writer is Professor of Law, Emeritus at Harvard Law School.
2024-05-19 00:00:00
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