The ICC secures complementary jurisdiction only if the nation with primary jurisdiction is unwilling or unable to conduct a fair and thorough investigation.

The signatories of the Rome Statute envisioned cases where the national judicial system had either totally or partially collapsed; is unable to “obtain an accused or key evidence and testimony”; or is “unable to carry out its proceedings” because it lacked “sufficient qualified personnel to effect a genuine prosecution.” The signatories of the Rome Statute did not envision a primary investigation of a Western democracy, such as Israel, whose Supreme Court has been called “the most activist judicial body of any advanced nation in the world.”

Unless the criteria for admissibility under Article 17 of the Rome Statute are satisfied, which they clearly are not here, 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.