Sergeant Elor Azaria was sentenced to eighteen months in prison last week for manslaughter. In March 2016, Azaria was caught on tape shooting an injured and immobilised Palestinian terrorist in the head in Hebron. The incident drew immediate condemnation from Israel’s prime minister, defense minister and military chief-of-staff, despite dividing the Israeli public. One reason for the condemnation, I argued at the time, was that Israel needed to prove its willingness and ability to prosecute possible war crimes in order to stave off any claim by the International Criminal Court to jurisdiction over its actions.   

Prime Minister Benjamin Netanyahu has restated his call for Azaria to receive a pardon, invoking the difficult circumstances in which IDF soldiers are required to make difficult decisions. This call for clemency comes after the initial investigation for murder was downgraded to manslaughter, and after Azaria was given only an eighteen-month sentence, despite the prosecution demanding three to five years and the law permitting up to twenty.

If the Prosecutor of the International Criminal Court does eventually decide to open a prosecution against Israeli citizens—as the Palestinians are urging—any pardon for Azaria could undermine Israel’s most basic claim against ICC involvement, namely that it lacks jurisdiction. From being the lynchpin of any Israeli argument that the ICC has no business investigating Israeli citizens, the Azaria case might turn into the fulcrum of the ICC’s case that it does.

Simply put, in order to deny the ICC any claims to jurisdiction over the actions of its citizens, Israel must demonstrate that it effectively prosecutes possible violations of international law. Although Israel is not party to the Rome Statute, the “State of Palestine” is a signatory, giving the court prospective jurisdiction over war crimes committed on its soil (whatever this state’s borders may be). Under the principle of complementarity, the court is required to dismiss cases where another state with prior jurisdiction is already investigating or prosecuting. But when a state with jurisdiction proves “unwilling or unable” to carry out a genuine prosecution (Article 17, ICC Charter), the court may declare the case admissible—and a prosecution can go ahead.

Elor Azaria’s actions last year constituted a war crime. He shot a man who had, in the course of stabbing and injuring another Israeli soldier, been wounded to the point of incapacity. This rendered him hors de combat (outside of combat). Protocol I of the Geneva Conventions (Article 41) specifies that a person “rendered unconscious or… otherwise incapacitated by wounds” shall not be attacked. As such, wilfully killing such a person is considered a “grave breach” of the Geneva Conventions, rendering it a prosecutable war crime at the ICC.

As it stands, the UN High Commissioner for Human Rights has warned that the “excessively lenient” sentence “risks undermining confidence in the justice system and reinforcing the culture of impunity.” Israel certainly has reason to be contemptuous of the UN’s human rights organs for their longstanding bias (the same statement seems to suggest that Israel should bring to trial soldiers who killed terrorists as they were committing attacks). But the Human Rights Commissioner is one such authority the Prosecutor may consult in deciding whether to launch an investigation. It matters for any possible future Israeli defense that its justice system be seen as beyond reproach.

If the ICC Prosecutor ever launches a case against Israeli citizens for military actions, Israel may argue that it has already investigated by itself, so the ICC lacks jurisdiction. But the ICC could rule that Israel has proven itself in the past “unwilling” to conduct genuine prosecutions. The question of pardons and of the appropriate severity of sentences is a notable lacuna in the Rome Statute—it says nothing on the matter. And there is little precedent for how the court should read the complementarity principle. But the court could conceivably, and plausibly, interpret a pardon or lenient sentencing as evidence that a state is “unwilling” to “genuinely” prosecute a case, saying the proceedings were conducted “for the purpose of shielding the person concerned from criminal responsibility.” This is not a universally accepted reading of the Rome Statute, but it would be sufficient grounds for the ICC to authorize criminal proceedings to go ahead if it so desired.

If Israel wants to deny the ICC jurisdiction over its citizens, it must continue to prove that it is willing to prosecute such crimes, and that means respecting the rulings of the courts rather than nullifying them with immediate pardons. If it fails to do so, it could find itself furnishing unfriendly international actors with a convenient pretext to escalate that legal campaign against it.

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