Some opponents of the judicial reforms proposed by the current Israeli government have asserted that their passage will expose current and former members of the IDF to prosecution by the International Criminal Court (ICC). If Israel allows its elected legislators to select judges and forbids its Supreme Court from revoking laws on a whim—the anti-reformists claim—the ICC will determine that Israel is incapable of prosecuting crimes on its own, and will therefore assert its jurisdiction. Eugene Kontorovich and Avraham Shalev are unconvinced:
The ICC has no authority over Israeli soldiers, regardless of the details of Israel’s legal system, for one simple reason: the court only has jurisdiction over countries that accept its jurisdiction by ratifying its constitutive treaty, known as the Rome Convention. . . . Israel, like its allies, the United States and India, has never joined the ICC, out of longstanding concerns about [its] systemic bias. The only way the court could exercise jurisdiction over Israeli nationals is in the case of war crimes committed in the territory of a state party, a situation that simply does not arise.
Assuming the ICC had jurisdiction, it only prosecutes where the home state is “unable or unwilling” to investigate or prosecute a crime. [This principle, known as the] complementarity doctrine, in no way relates to the method of judicial selection. Indeed, it does not refer to courts at all, but to the “unwillingness” of the “state” to prosecute, which focuses primarily on the executive branch. The proposed reforms do not involve Israel’s criminal justice system, its independence, or the ability of prosecutors to prosecute offences committed by its soldiers.
Even Israel’s present judicial system would not satisfy the ICC’s views of what complementarity requires, however. Foremost among the supposed crimes the ICC is investigating [is] the supposed crime of allowing Jews to live in Judea and Samaria. Israel’s Supreme Court, however, has never treated this as a criminal issue.
The rhetoric about the ICC in the judicial-reform debate gives the body far more respect and formidability than it deserves.
Read more on Kohelet: https://en.kohelet.org.il/publication/judicial-reforms-and-the-threat-of-international-criminal-court-prosecution