No Politics, Just Justice: The ICC and the Israeli-Palestinian Conflict

On April 1st, The Palestinian Authority formally acceded to the Rome Statute, the treaty that governs the International Criminal Court, much to the anger and apprehension of Israelis and...

On April 1st, The Palestinian Authority formally acceded to the Rome Statute, the treaty that governs the International Criminal Court, much to the anger and apprehension of Israelis and Israel’s supporters worldwide. However, this outrage is largely misplaced. A careful analysis of the Rome Statute and of the Court’s jurisprudence indicates that the Palestinian Authority may have shot itself in the foot. Indeed, any ICC investigations are far more likely to implicate Hamas operatives than Israeli soldiers.

The story of the International Criminal Court’s involvement in the Israeli-Palestinian conflict begins long before April 1, 2015. First, in 2009 the Palestinian Authority lodged a declaration accepting the ICC’s jurisdiction, which was swiftly dismissed, because Palestine had not been recognized as a state by the United Nations and, therefore, could not legally lodge such a declaration.

In 2013, the Palestinian question returned to the Court in the wake of the 2010 Gaza flotilla incident. After a boat called the Mavi Marmara ignored several requests by Israeli soldiers to turn around, Israeli forces attempted to board from a helicopter. The passengers, armed with chairs, steel poles, and knives, attacked the Israeli soldiers. In the fighting that ensued, nine of the passengers were killed.

The Mavi Marmara had been registered to a small island nation called the Comorros, who proceeded to demand an examination by the ICC. The chief prosecutor dismissed this as well, as she found that the altercation was not of sufficient gravity to evolve into a full-fledged investigation.

In January of this year, the Palestinian Authority, freshly designated as a non-member observer state by the United Nations, once again appealed to the ICC for assistance. On January 1st, they requested an ICC investigation retroactive to June 13, 2014. The date, shamelessly and cunningly chosen by the Palestinian petitioners, is the day after a group of Palestinians kidnapped and murdered three Israeli teenagers last summer.

The next day, the Palestinians submitted all necessary documents to join the Court as a full member, effective April 1st, 2015. On January 16th, the Chief Prosecutor, Fatou Bensouda, officially opened a preliminary examination. There have been no publically available results of that examination to date.

A brief glance at the Court’s record will show why Israel has little to fear from this examination. Criticism of the ICC (not only in regard to Israel) has been distinguished by a great deal of misunderstanding, at best, and deliberate deception at worst. For example, several self-interested African leaders and numerous activist dupes have denounced the Court as a Western neo-imperialist institution hell bent on putting African people on trial.

The numbers, however, tell a different story. Of 9 investigations in eight African situation countries, one was triggered by the Court’s Prosecutor on his own initiative (Kenya), two were triggered by United Nations Security Council resolutions (Sudan, Libya) and five (DRC, CAR, Uganda, Cote d’Ivoire, Mali) were self-referrals, meaning sovereign governments felt that violence in their countries was beyond the capabilities of local law enforcement officials and asked the ICC to intervene. Furthermore, of nine countries currently undergoing preliminary examinations by the Court (including Palestine), only one is in Africa. This is manifestly not the record of an imperialist institution.

Many of these self-referrals were made by dictators with the expectation that they could steer the course of the ICC’s investigation toward their enemies. But the ICC does not work that way. Once they begin an investigation, all bets are off. They investigate impartially and without any allegiance to whomever may have called them in in the first place.

This is the primary reason why African dictators, formerly champions of the ICC, and among the Rome Statute’s first signatories, now lead the “neo-imperialist” slander campaign. The same sequence of events is likely to repeat in the Palestinian territories.

ICC investigation teams, not blinded by the political ambition of the Goldstone report (which Justice Goldstone later retracted) or the disturbing controversy of the ongoing UN Gaza Commission (see here and here), will find that when Hamas and other Palestinian paramilitary fighters attacked civilian populations and then used their own children as human shields, their compatriots encouraged and rewarded them. This has been documented repeatedly by the press and by non-governmental organizations. Just last week, Amnesty International, published a damning 60 page report, summarizing their findings of deliberate attacks against civilian populations by Hamas. These included attacks against Israeli civilians as well as rocket-fire on Palestinian civilian centers for the sole purpose of generating more images of mangled Palestinian corpses to lay at the feet of the Israeli military.

They will also find a long and documented record of the IDF complying and exceeding the standards of International Humanitarian Law for safeguarding civilians, including distributing warnings via radio, megaphone, and leaflet as well as frequently aborting strikes on strategic targets when they may injure nearby civilians.

The ICC is a court of last resort, which means it can only prosecute when domestic legal systems are “unwilling or unable” to do so. ICC investigators will find that Palestinian courts were certainly unwilling or unable to prosecute their war criminals, whereas the Israeli Army has diligently prosecuted their soldiers.

Lastly, though employees of the ICC and its closest allies will vehemently deny any political influence on the decision making of the judges or of the prosecutor, the fact remains that the Court does not exist in a vacuum. Though the Court is nobody’s political tool (those who say it is have a deeply flawed understanding of the Court’s record thus far), it cannot ignore the international tensions acting upon it.

The Court’s decision makers are keenly aware that fraying relations with the United States undermine ICC investigations everywhere in the world. The prospect of further alienating the United States by pursuing a biased and one sided investigation of crimes committed during Israel’s military operation in the Palestinian territories last summer (known as Operation Protective Edge) would not only smear the ICC’s own governing statute, but undermine its very continued existence.

Indeed, its reputation as the inheritor of the legacies of the International Criminal Tribunals for Yugoslavia and Rwanda is presently overshadowed by the Court’s perceived futility. The international criminal tribunals set up to investigate and prosecute crimes in Rwanda (ICTR) and Yugoslavia (ICTY) have declared “mission accomplished,” and largely closed up shop, retreating to a “residual mechanism” meant to deal with primarily administrative issues and parole matters. The ICTY, in particular, boasts that of 161 individuals indicted, not a single one escaped the tribunal entirely. Some died during trial[1] and some were acquitted pursuant to the Court’s commitment to fair legal processes, but not a single one of those 161 is still on the lam. This is a record of which the ICC can only dream. They would only weaken their position by attempting to begin even more cases that they know they cannot hope to try to verdict.

It is common to criticize the United Nations for being vehemently anti-Israel, but the International Criminal Court is not a UN body – it is independent, and its interests in this regard are contrarily aligned.

US Supreme Court Justice Oliver Wendell Holmes, who felt strongly that judicial rulings should defer to legislative bodies famously wrote, “I always say, as you know, that if my fellow citizens want to go to Hell I will help them.” The Palestinian leap from observer status at the UN to State Party to the International Criminal Court just might prove Justice Holmes’ words providential.

[1] Including Slobodan Milosevic, former President of Serbia

Dave Benger

David Benger is a former Professional Associate at the American NGO Coalition for the International Criminal Court and a former legal intern on the defense team for Jean Pierre Bemba at the ICC. He is an alumnus of Brandeis University and the Brandeis in the Hague intensive semester in public international law and international criminal law at Leiden University. He will begin his studies at the Fletcher School for Law and Diplomacy next Fall. The views expressed are entirely his own, and he can be reached at [email protected]
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