475 lawyers in Israel are demanding that the Israel Bar Association (IBA) rescind its request to submit an amicus curiae legal opinion to the International Criminal Court (ICC) in advance of its pending deliberations on the pressing question of territorial jurisdiction in relation to the “Situation in Palestine”.
The lawyers – themselves all members of the IBA – contend that the IBA decision is strictly political in motive and intended to support the Israeli government’s positions entrenching occupation, that it falls far beyond both the IBA’s authority and area of legal expertise, and that the move was pushed through in a hasty and underhanded manner.
The attorneys who signed the letter of objection, drafted by Adalah – The Legal Center for Arab Minority Rights in Israel and sent on Thursday, 12 March 2020 to IBA Chairman Avi Himi, are Palestinian citizens of Israel and Jewish Israeli human rights lawyers.
On 10 February 2020, IBA Chairman Himi contacted the 34 members of the IBA’s National Council via its WhatsApp group in order to seek their opinion on the IBA’s submission of an amicus curiae – or “friend of the court” – request to the ICC. Himi called on the council members to convey their position on the issue within just three hours.
An amicus curiae – or “friend of the court” – is not a party to a particular litigation but is nevertheless permitted by the court to advise it in respect to some matter of law that directly affects the case in question.
Himi’s explanation for the proposed submission was general in nature. National Council members – including Arab attorneys – voiced their firm objections to both the manner in which the deliberation was being conducted, and to the decision itself. The lawyers who objected to the submission emphasized that the IBA is forbidden from intervening in issues that are clearly political and which raise political and legal controversy; they stressed that no serious discussion on the matter was held; and stressed that the issue does not fall within the IBA’s area of expertise.
Nevertheless, IBA Chairman Himi submitted the request for an amicus curiae on 14 February 2020.
The IBA has never before sought to involve itself in any Israeli Supreme Court proceedings concerning issues relating to the law of occupation and the applicability of international humanitarian law to the West Bank and the Gaza Strip, nor has it ever expressed a legal position on these issues. The letter emphasized that the IBA, therefore, “cannot pretend to have any special professional expertise at the international level. There is no doubt that it seeks to intervene only in order to support the political position of the Israeli government.”
IBA Chairman Himi told the IBA National Council members that the State of Israel is not a member of the ICC and will likely boycott the proceedings. In a seemingly overt indication that the IBA’s move is indeed intended to advocate on behalf of Israel, Himi added that “So that the Palestinian Authority’s position will not to remain without a response, the chairman of the IBA’s International Forum was asked … about the possibility that the IBA would submit its position to the Court as an ‘amicus curiae’. For that purpose, a team was formed, headed by Advocate Nick Kaufman, an expert in international law who has represented several states at the Court in the Hague.”