Politicizing the International Criminal Court

Palestinian Manipulation of the International Community
Contents
Overview: Palestinian Manipulation of the International Community
Amb. Alan Baker

Manipulating International Law as Part of Anti-Israel “Lawfare”
Prof. Robbie Sabel

Universal Jurisdiction: Learning the Costs of Political Manipulation the Hard Way
Dr. Rephael Ben-Ari

The Demonization of Israel at the United Nations in Europe
Mr. Hillel Neuer

The Role of NGOs in the Palestinian Political War Against Israel
Prof. Gerald M. Steinberg

Politicizing the International Criminal Court
Prof. Eugene Kontorovich

Degrading International Institutions: The United Nations Goldstone Report
Amb. Dore Gold

The Abuse of Islam as Part of the Demonization of Israel
Ms. Sinem Tezyapar

Palestinian Christian Abuse of Christian Organizations in the West
Dr. Dexter Van Zile

UNRWA: Blurring the Lines between Humanitarianism and Politics
Dr. Rephael Ben-Ari

Manufacturing and Exploiting Compassion: Abuse of the Media by Palestinian Propaganda
Mr. Philippe Assoulin, Esq

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Politicizing the International Criminal Court

Prof. Eugene Kontorovich

Introduction

In a press conference recently, Mahmoud Abbas threatened to use Palestine’s GA-recognized “state” status to challenge Israel’s settlements in the International Criminal Court.1 He picked a most unlikely venue for the presser – Ankara, in a joint conference with Turkey’s president. The absurdity of this is that Turkey continues to occupy much of Cyprus, and is responsible for a massive settlement program there. Indeed, Turkish settlers now constitute an absolute majority in Northern Cyprus. Cyprus itself is already an ICC member, and thus any state party, or the prosecutor himself, can commence proceedings against Turkey, but none seem interested, and Ankara does not seem worried.

Israel, on the other hand, is quite alarmed, for the same reason the Turks are unperturbed. The threat of a war crimes suit at the ICC concerning (Israeli) settlements has nothing to do with the established role of the Court or any precedent in international criminal law. Rather, is part of the Durban Strategy, adopted by the NGO Forum at the United Nations Conference on Racism in 2001.2 The strategy seeks to use tools of lawfare to isolate and delegitimize Israel. This involves confronting Israel in international organizations, some of which have been almost entirely hijacked by anti-Israel forces. Turkey is a partner rather than a target in this expressly political enterprise, and thus has nothing to fear.

The main International Criminal Court building in the Hague. (Wiki Commons)

The main International Criminal Court building in the
Hague. (Wiki Commons)

The International Criminal Court has become perhaps the most important weapon in the lawfare campaign against Israel, particularly for Palestinian diplomatic and political efforts. Israel’s various antagonists have increasingly sought to channel what were otherwise diplomatic disputes with Israel into criminal proceedings. Since 2009, Palestinian officials have sought or threatened ICC action first into Israeli military operations in the Gaza Strip, and more recently, the existence of Jewish civilian communities (settlements) in the West Bank. Similarly, the Israeli interdiction of the flotilla running the Gaza blockade was first the object of extensive diplomacy with Turkey, and then was channeled into an ICC investigation.

It is difficult to overestimate the impact that a threat of an ICC investigation has on Israel, even though there are numerous jurisdictional barriers to such a proceeding. The ICC hangs over Israeli decision-making from the tactical to the strategic level.  For example, in May 2012, the Israeli government forcibly removed Jewish residents from a house they had purchased in Hebron; the Attorney General had warned that if the members of the government allowed illegal property take-overs, they could find themselves prosecuted for violating the Geneva Convention.3 On a much larger scale, Prime Minister Netanyahu entered “final status” negotiations with the Palestinians, and paid for the privilege with the high price of releasing convicted terrorist killers. The deal was that at least as long as Israel makes concessions, the Palestinians would put off seeking action at the ICC.4 If the talks do not go as the Palestinians like, they will “go to the ICC.”

Thus the price for the “suspension” of ICC action is Israel’s entire territorial and political demands. The ICC is supposed to be an instrument of justice, not a bargaining chip. But the Palestinian leadership has consistently used the ICC as a very explicit cudgel to demand concessions from Israel.5 In the Court’s jurisprudence as well as its Statute, justice takes precedence over diplomatic considerations such as peace negotiations. Ironically, a Court whose mission is to punish mass atrocity is being used as a tool for the mass release of convicted murders.

The Court was created to deal with, and deter, the gravest crimes in the world – genocide, ethnic cleansing, crimes against humanity, and other instances of mass atrocity. It has done little to prevent such outrages, or even punish them. Israel’s region alone features army massacres in Egypt, chemical warfare, ethnic cleansing and worse in Syria, genocide-inciting nuclear proliferators in Iran, and so forth.Yet the ICC is being used as a threat against the one country in the region not convulsed by violence or dominated by an authoritarian regime.

Since the 1990s, Israel has faced lawfare challenges from politically motivated prosecutions, or threatened prosecutions, of its leaders in foreign countries. The doctrine of “universal jurisdiction” for serious international law crimes allowed nations with no connection to the alleged offenses to arrest and try suspects. While this doctrine resulted in proceedings in Britain, Spain, and Belgium against Israeli leaders for alleged war crimes, these cases did not get far, largely because they lacked the support of the governments. Moreover, when such cases were brought against leaders of more powerful states, like the United States and China, the European nations promptly narrowed their statutes.

The International Criminal Court poses a greater problem for Israel because it is a court without a country. There is no foreign or prime minister to restrain politicized prosecutions, who might value an ongoing relationship with Israel, or who might fear a loss of trade, intelligence cooperation, and so forth. Moreover, European universal jurisdiction cases were reined in because they went too far, targeting not just Israel but also the United States. It is almost completely inconceivable that the ICC bureaucracy would take any steps against the United States or any other major power that had not consented to jurisdiction. Moreover, the ICC has been under pressure to pursue a “Western” nation, as all of its cases thus far have involved African atrocities.6 European states almost entirely avoid hostilities, the context in which deplorable war crimes might occur, and thus Israel may be an appealing “diversity” candidate for the Court.

Given the lack of ICC jurisdiction – and in Israel’s view, the lack of any underlying crimes – one must understand why Israel fears the Court so much. Certainly other countries do not appear to have been significantly harmed by an ICC investigation.7 Kenya’s top leaders have actually been indicted and are being tried in The Hague, but that has evidently not damaged the country’s diplomatic relations, and did not even keep one of the accused from being elected president. Yet, for Israel, the threat of ICC proceedings is troubling because it is seen as being a cue or focal point for a new and more aggressive wave of delegitimization activity, much as the Goldstone Report was used. Nor does Israel wish to be the first and likely only Western democracy singled out at the bar of international justice. Thus the process is the punishment. As with the subsequently retracted Goldstone Report, the sensational nature of the ICC launching an investigation into Israel would overshadow any subsequent developments. Finally, Israel has seen other nominally neutral international bodies be hijacked by anti-Israel agendas. There is no evidence that this will be true of the ICC, but for Israel the risks of finding out are too high.

This chapter will explore how the efforts to enlist the ICC into a broader delegitimization campaign against Israel both flouts the international law rules that establish the Court, while threatening to politicize and trivialize the institution. Part 2 explains how incongruous proceedings against Israel would be within the context of the Court’s role and function in the past decade. Part 3 explains the background of Palestinian machinations to bring claims against Israel to the ICC. Part 4 explains how even if Palestine is a state, and because Israel is not a state party, the ICC would have no jurisdiction over Israel settlements. Efforts to bring such a matter before it are an invitation to the Court to usurp authority and disregard its Statute. Part 5 considers the more recent and quixotic attempts to inject the Court into the Gaza Flotilla controversy.

The Extraordinary Nature of an ICC Role

The Palestinians glibly threaten to “take Israel to the ICC” over Jewish civilian communities; the United States, by counting abstention from such action as a Palestinian concession, flatters the legitimacy and realism of such threats. And the United Nations Human Rights Council has suggested the possibility of ICC jurisdiction over the settlements issue.8 Yet the Palestinian threat has nothing to do with how the ICC actually functions. Currently the Court clearly has no jurisdiction over any aspect of the Israeli-Palestinian conflict. Far from a routine or recognized course of action, it would be extraordinary and unique for the ICC to accept such referrals. It would be unprecedented along several dimensions.

For example, one does not just “go” to the ICC. In its short history, the ICC has only completed two trials, one resulting in an acquittal. It has only accepted eight situations, all of them involving mass murder, depredation and wholesale brutality.9 Only 18 defendants have been charged across the eight cases, with less than half of them in custody. Of the other defendants, one has since his indictment been elected president of Kenya, while another remains a globe-trotting head of state, despite ICC rules requiring all member nations to arrest him.

Moreover, despite popular conceptions, the ICC does not have jurisdiction over all international crimes in the world. Rather, it is a membership organization. Nations become parties to the Court by acceding to its Statute, which is an international treaty. The Court only has jurisdiction over crimes committed in the territory or by the nationals of countries that have accepted its jurisdiction.10 Notably, prominent Western targets of lawfare, the United States and Israel, are not parties to the Statute. Nor are the nations in the world that account for most of its population, and most of the potential for ICC charges: neither China, nor India, nor Pakistan,nor Russia have joined the Court. In the Middle East, only post-Saddam Iraq has become party to the Court.

An ICC case about Israel’s settlements would be an extraordinary combination of firsts. While a relatively new court will frequently break new ground, this case would pile innovation upon innovation for the sake of prosecuting Israeli officials.

  • The ICC has never accepted a referral by one state against another.
  • The ICC has never received, let alone accepted, a referral by a member state against a non-member state. Each situation referred by a state involved itself or another state that had accepted the Court’s jurisdiction.
  •  The ICC has never decided any issues about the status of disputed territory, or prosecuted any alleged crimes arising in disputed territory.
  • The ICC has never pursued crimes that do not involve large-scale murder and extreme brutality.
  • Finally, no court of any kind – national court or international tribunals from Nuremberg – has ever prosecuted anyone for “settlement activity,” despite an abundance of potential targets from Morocco to Turkey to Syria.

The Long Campaign to Target Israel at the ICC

Israel, like the United States, has never joined the ICC. Despite Israel’s initial support for such a court, and its strong commitment to the notion of international law, it was convinced, in light of the terms of its Statute and the politically inspired nature of some of its provisions, that the Court would reflect the broader bias against Israel found in such international bodies as the U.N. Human Rights Commission. The bias is baked into the Court’s statute. The section of the Court’s jurisdiction that defines war crimes borrows its definitions word-for-word from the Geneva Convention – with one major exception. At the drafting conference, Arab nations endorsed changing the language of the provision that many see as bearing on the legality of settlements – the prohibition on “deporting and transferring” civilians into occupied territory. The Arab League, led by Syria and Egypt, over US and Israeli opposition, succeeded in inventing an entirely new offense previously unknown to international criminal tribunals – “indirect” transfer, which was designed to make a war crime out of voluntary and free movement of Jews into the territories of Judea and Samaria. This language, which represented politically inspired departure from the purposes for which the initial prohibition had been inserted into the Fourth Geneva Convention in 1949, was specifically and deliberately targeted at Israel, and thus Israel did not become party to the Statute.

Thus Israel is presumptively outside the court’s limited jurisdiction, unless it acts in the territory of an ICC member. As it happens, none of Israel’s neighbors are member states either. Yet the Palestinian leadership has been trying to invoke the Court’s jurisdiction for years now. In doing so, they face two obvious problems: Israel has not accepted the Court’s jurisdiction. And only “states” can do so; the Palestinian claim to a status as a state has been murky, at least in part because of its leadership’s alternating descriptions of themselves as a state and an occupied territory aspiring to statehood.

In January 2009, in the wake of Palestinian-Israel hostilities in Gaza, the Palestinian Justice Minister submitted a Declaration to the ICC accepting the jurisdiction of the ICC under Art. 12(3), which permits non-member nations to give the ICC jurisdiction over particular situations on an ad-hoc basis.11 After a long consideration, the Prosecutor in April 2012 announced that he would not proceed with an investigation because Palestine was not a “state” within the meaning of the ICC Statute.

In determining what entities qualify as “States,” the Prosecutor said he would be guided by determinations of the General Assembly, which did not treat Palestine as a state.12 While at first this seemed a setback for the Palestinians, it also offered an opportunity. It suggested that the Office of the Prosecutor (OTP) would not look to objective indicia of statehood, such as the Montevideo Convention factors, but rather accept as binding the political determinations of the UN General Assembly (GA). If the GA would recognize Palestine, the Prosecutor could feel free to act, despite Palestine’s not being a member of the United Nations and arguably not fitting traditional statehood criteria.

Thus the Palestinians turned their efforts to securing GA recognition. In a closely watched vote on Nov. 29, 2012, the GA granted “Palestine” “non-member-state observer” status.13 It is a testament to the centrality of lawfare to the Palestinian strategy that the move was widely understood as specifically designed to facilitate an ICC action.14 Indeed, this was the first time a nation sought UN membership specifically to be able to threaten ICC proceedings. Indeed, several powerful Security Council members that did not support the resolution but were sympathetic to it offered to vote in favor if the Palestinians promised not to turn to the ICC.15 In the wake of the resolution’s passage, commentary and media coverage focused on the new possibility of an ICC case involving Israeli military campaigns against terrorists in Gaza, and even more significantly, the entire existence of Jewish settlements in the West Bank, which many have long regarded as violating laws of war treaties.16

Of course, the majority vote in the GA does not have the power or authority to turn a territory into a state, for the ICC or any other purposes. (The Palestinians know this, which is why they had first sought the more-authoritative recognition of the Security Council, and been rejected.) The Court has a new Prosecutor, who is not bound by her predecessor’s policy of looking to the GA for statehood determinations. Statehood is undefined in the Statute, and the new Prosecutor is free to make an independent determination based on objective criteria such as control of territory, or take some other approach.

But even assuming, arguably, Palestine is now a state (does this mean there is no longer a need for a two-state solution?), Israel is still not a state party. The Court could only have jurisdiction over Israeli activity “in the territory” of Palestine. Yet Israeli settlements are not in “the territory of Palestine” – which does not legally or factually exist – rather, they are in disputed territory where Israel exercises full criminal jurisdiction pursuant to express agreements with the Palestine Liberation Organization.17 Thus the Palestinians cannot give the Court jurisdiction over Israeli civilian communities. This is a fundamental limit on the power of the Court, and bears some elaboration.

Even if  “Palestine” is a State, Settlements are Outside Its Jurisdiction

The International Criminal Court operates primarily on the principle of delegated jurisdiction, not universal jurisdiction.18 Its jurisdiction depends on the consent of states, and thus it can only prosecute crimes that occur in the territory of consenting states, or were committed by their nationals. Thus far, the territorial and nationality jurisdiction has coincided: the ICC has only pursued investigations in situations involving crimes on the territory of member states when the alleged perpetrators are themselves nationals of the member state. The most controversial aspect of the ICC’s jurisdiction has always been its application to nationals of non-member states for conduct on the territory of member states.19 Yet such jurisdiction is consistent with national sovereignty because the member state itself has jurisdiction under traditional territorial principles over the non-member nationals; it can thus delegate its own jurisdiction to an international tribunal.

This poses an important, if novel, jurisdictional bar to a Palestinian referral focused on settlements. Under Art. 12 of the Statute, the ICC could only have jurisdiction over Israel for conduct that occurred “on the territory” of the State of Palestine.20 Thus, exercising jurisdiction requires first determining Palestine’s territory. The Rome Statute presumes defined, accepted international boundaries (most boundary disputes are quite minor and have thus far been irrelevant to the crimes within the ICC’s jurisdiction). When these assumptions are not satisfied, the Statute provides no guidance for dealing with territorial “gray areas.”21

The “territory” of Palestine is not at all established.22 Similarly, Israel lacks some defined borders. In short, the borders of any state or states that have arisen in the territory of the League of Nations Mandate for Palestine remain entirely undefined. Accepting a Palestinian referral would make the scope of the ICC’s jurisdiction always indeterminate – non-member nations would be vulnerable to ICC suits simply by neighbors convincing the Court that a certain territory is theirs. Such action would also greatly discourage membership by nations with disputed frontiers. Territorial jurisdiction was envisioned as useful for self-referrals of the kind the ICC has dealt with so far, and clear aggression and invasion of previously recognized sovereign frontiers.

The ICC has not been understood as a border-determination body; defining the territory of nations has never been part of the work of past international criminal tribunals.23 The border demarcation role more naturally falls to the International Court of Justice, and even then only when both parties consent to jurisdiction.

The jurisdictional question of borders cannot be resolved by previewing the substantive legality of settlements. The origin of the “settlements” norm is Art.49(6) of the Fourth Geneva Convention, which provides that the “occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies.” In the drafting of the Rome Statute, the Arab states successfully proposed modifying the Geneva language to “directly or indirectly deport or transfer.” The inclusion of this language was thought to specifically target Israel’s settlements, and was the reason it did not join the treaty.

For “transfer” to be a crime, the relevant territory must be occupied. Israel has long argued that the underlying Geneva Convention provisions regarding occupation are limited to the “occupation of the territory of a High Contracting Party.”24 The West Bank was not Jordanian sovereign territory when Israel took it in 1967.Because the territory did not belong to a High Contracting Party when occupied, the argument goes, the rules regarding occupation do not apply.

Yet many international lawyers reject this argument, concluding that the Conventions’ protections are intended to have broader scope, and apply (at least) to all wars between member states. However, such a conclusion does nothing to establish the “territory” of a Palestinian state. The central difficulty for ICC jurisdiction is that the mere fact of Israeli occupation does not mean the territory falls under Palestinian sovereignty. The dominant interpretation of the Geneva Conventions is that an “occupation” can arise even in an area that is not the territory of any state. Thus even if Israel is an occupying power throughout the West Bank for the purposes of substantive humanitarian law, this does not establish that settlement activity occurs “on the territory” of the Palestinian state.

To put it differently, while violations of the anti-transfer norm may not need to take place in the territory of a state to constitute a violation, they still must be “on the territory” of a state for the ICC to have jurisdiction. This is because the ICC is not a court of general or global jurisdiction; its jurisdiction does not extend to all violations of humanitarian law anywhere in the world. This is consistent with the respective roles of the Geneva Conventions and the ICC. The Geneva Conventions, which have near universal adherence, are interpreted broadly because of a desire to not have gaps in coverage. With the ICC, which has a limited and particular jurisdiction, gaps in jurisdictional coverage are purposeful and inherent.25

The lack of clear territorial jurisdiction would be particularly troubling because the underlying crime is not one of universal jurisdiction. Any and all nations have jurisdiction of universal jurisdiction crimes; no territorial connection with the offense is needed (though custody of the defendant may be required). An alternative theory of the ICC’s jurisdiction is that it exercises even delegated universal jurisdiction, not merely delegated territorial jurisdiction.26 This account is not the dominant one, but certainly to the extent crimes within the Court’s jurisdiction are universally cognizable, concerns about non-member nationals are somewhat attenuated.27 Yet not all crimes within the ICC’s charter are universal.28 Perhaps the most salient exceptions are aggression29 and non-grave breaches of the Geneva Conventions, of which “transfer” is one. Not only does the Geneva regime not make “transfer” universally cognizable, there is no subsequent precedent of universal jurisdiction being applied to the offense.30

One might think that just as the ICC would not determine statehood by itself but rather rely on the decisions of other UN agencies, it might also choose to take borders as a factual determination that could be made by the political branches.Even assuming the dubious validity of this approach,31 neither of the two prominent (but non-legally binding) international statements on Palestinian rights purported to determine borders. Despite their condemnation of Israeli settlements, neither the GA resolution acknowledging Palestinian statehood, nor the earlier International Court of Justice condemnation of the construction of Israel’s security fence, contained any express or implied borders determinations.

The General Assembly resolution of Nov. 2012 does not answer the question of Palestine’s borders, and does not even address it. The resolution merely “ decides” to accord Palestine non-member status in the GA; it decides nothing about borders.32 Even the non-operative provisions are unclear as to borders. On the one hand, Par. 1 refers to “Palestinian territory occupied since 1967.” This appears to be more of a claim about indigenous rights than a determination of national borders, as there was no Palestinian state or entity in 1967. On the other hand, Par. 4 expresses hope for the eventual “achievement” of a “contiguousPalestinian state living side by side in peace and security with Israel on the basis of the pre-1967 borders,” suggesting that the Israel-Jordanian armistice line is not the operative or ultimate border. Moreover, it suggests that the Palestinian state does not yet have these borders (as it is certainly not contiguous).33 The “on the basis” language has traditionally referred to adjustments in the 1949 Armistice Lines to include most Israeli settlements within Israel’s borders. The Resolution also calls for a diplomatic process to “resolve the outstanding core issues” such as the fate of “Jerusalem, settlements, borders.”34 This makes clear that borders are an “outstanding” issue: the Assembly did not see its resolution as determining any of the territorial questions that must be central to an ICC investigation of settlements.

Even if the GA resolution did express a view on Palestine’s borders, it is not binding or authoritative. The General Assembly has an internal bureaucratic power to determine its membership. That determination may or may not be the required trigger for “statehood” for ICC purposes – even that is unclear.35 But determining the territory of states goes beyond any of the General Assembly’s recognized powers.

Similarly, the ICJ opinion recognized the difference between the existence of occupation (which does not require the occupied territory to be sovereign) and borders, which delimit the territories of two separate sovereigns.36 The Court self­consciously avoided any resolution of “permanent status” issues such as borders.37 It also made clear that the 1949 Armistice Lines, while in its view triggering the applicability of Geneva Conventions and other principles, do not constitute an international boundary.38 Indeed, the Court specifically criticized the route of the wall because it could “prejudge the future frontier between Israel and Palestine.”39 Thus in the view of Court, there was no recognized frontier between the two entities. If the Green Line were the recognized “frontier,” the Wall would not prejudge it, but rather simply infringe on it.

Adjudication by international tribunals, including the ICC, depends fundamentally on state consent. As a result, the International Court of Justice held in the influential Monetary Gold case that it could not determine the legal rights and duties of a state that was not party to the case and that had not given its consent.40 Thus, where the decision of a case necessarily requires the adjudication of the legal interests of a non-consenting state, the Court cannot exercise jurisdiction. This principle extends beyond the ICJ; other international tribunals have treated the principle as part of the general international law applicable to international tribunals:

[T]he consent principle applies to the ICC as it does to other international Tribunals. Were the ICC to make judicial determinations on the legal responsibilities of nonconsenting States with respect to the use of force and aggression, this would violate the Monetary Gold principle.41

To exercise jurisdiction, the Court necessarily must decide on the borders of Palestine, which simultaneously determines the borders of Israel, a non-member.In order to reach the issue of individual liability, the Court must first draw the borders of a non-consenting state – as clear a violation of the Monetary Gold principle as one could imagine.

Turkey and the Flotilla

The Israeli interdiction of the Turkish-sponsored, Gaza-bound flotilla has been fodder for multiple international investigations, Israeli investigations, and extensive diplomatic discussions between Ankara and Jerusalem. Shortly after Israel and Turkey reportedly came to a rapprochement about the affair, the island nation of Comoros referred the situation to the Prosecutor. While neither Turkey nor Israel are state parties, one of the Turkish-owned vessels in the flotilla had been reflagged to Comoros – flags of convenience, as they are known, are quite loosely regulated under international law. Thus the vessel was technically on the territory of Comoros. Yet Comoros was clearly just a front – an Istanbul law firm drafted the referral itself.42 The Turkish use of such a straw man to invoke the ICC’s jurisdiction despite the settlement with Israel is undiplomatic and abusive, but within the letter of the Court’s statute. The territoriality argument is technical, but sound, just as the Palestinian one is unsound.

Yet the Comoros referral suffers from even greater disabilities. For one, it grossly fails the requirement of complementarity. The ICC can only act when nations with primary jurisdiction are “unable or unwilling” to “genuinely” investigate.43 Israel conducted a full and thorough inquiry into the flotilla incident and found no crimes occurred. The vessels ran a blockade, giving Israel a legitimate right to stop it; when confronted with force the boarders acted in self-defense. This is far from a clear violation of international law. And while one might criticize the inquiry, many leading scholars concurred, making it very difficult to criticize Israel’s inquiry as a sham to avoid responsibility. Obviously any national inquiry could be perceived as self-interested, but the complementarity system nonetheless defers to such proceedings unless they are manifestly self-dealing. If Israel’s inquiry fails the complementarity test, any national inquiry that does not result in prosecution would be inadequate – contradicting the clear language of the Statute, which clearly sees non-strategic non-prosecution as enough to make a matter inadmissible before the Court.44

But even beyond the Israeli proceedings, Turkey has initiated a prosecution and trial of the Israeli military personnel in the flotilla incident.45 It would defy credulity to suggest these proceedings aim to immunize Israeli officials.46 Moreover, the Comoros referral fails to meet the “gravity” requirement for ICC cases. The ICC is designed to not deal with every colorable incident of war crimes, but only with the most awful and systematic. While the statute does not define the “gravity” requirement, the killing of nine armed people in an isolated incident, arguably in self-defense, manifestly fails this requirement. The ICC prosecutor has already rejected charges against British troops in Iraq as failing to meet the gravity requirement when a similar number of deaths were involved.47

The manifest weakness of the Comoros referral underscores that the purpose of such proceedings is not to secure convictions, but to exert political pressure on Israel regarding matters already subject to diplomacy, and cast a shadow on the legitimacy of the Jewish state. Thus such actions pervert the function and purpose of the Court. At the same time, the Comoros referral is so weak and manifestly unlikely to succeed, that one wonders whether its true purpose is even just to embarrass, as it seems too far outside the ICC’s mandate even for that. Rather, the Comoros suit may be best viewed as a political action to accompany, and precede, a Palestinian referral. The Comoros filing came just as matters between Israel and Turkey had nominally been resolved or at least ameliorated – but even as a possible Palestinian referral seemed imminent.

A Palestinian referral, if it resulted in an investigation, would certainly expose the Court to accusations of anti-Israel bias, especially given how far such a matter would go beyond the Court’s mission and mandate. However, if it had already rejected one referral against Israel, the Court would need some political cover, however thin, to protect it against such charges. While it may seem paranoid to suggest such machinations, it is widely thought to be a priority for the Court to “balance” its docket with matters not involving African states to hedge against accusations of neo-colonialism.48 The suggestion here is that the pathetic flotilla case is a “loss leader,” or a kind of set-off for a subsequent Palestinian referral.

Eugene Kontorovich is a professor of law at Northwestern University School of Law, specializing in public law, and also teaching in its International Law LLM program in Tel Aviv. He is a senior fellow at the Kohelet Policy Forum and a Lady Davis Visiting Professor at Hebrew University. His work has been cited in path-breaking international law cases in the US and abroad. He received his undergraduate and law degrees and has taught at the University of Chicago, and clerked for Judge Richard Posner on the United States Court of Appeals.

Notes

1 http://www.google.com/hostednews/afp/article/ALeqM5i5tc0voVhdjx1rpqg_Rqk2B6k8GQ?docId=CNG.ec7b73e3bc421b8b5a3d5be7d0e31e42.9b1&amp

2 See Anne Herzberg, Lawfare: Exploitation of the Courts in the Arab-Israeli Conflict (2d. ed 2010), available at http://www.ngo-monitor.org/data/images/File/lawfare-monograph.pdf

3 Chaim Levison, Netanyahu ordered evacuation of Hebron home over fears of war crimes suits, Haaretz.com, May 13, 2012. An appellate panel subsequently upheld the legality of the Israeli purchase of the house. See Stuart Winer, Settlers receive boost in battle over Hebron home, Times of Israel (July 1, 2013), available at http://www.timesofisrael.com/settlers-receive-boost-in-battle-over-hebron-home/

4 Khaled Abu Toameh, PA to halt ICC plans against Israel as peace gesture, Jerusalem Post, May 5 2013.

5 Jack Khoury, If peace talks fail, Abbas will have to answer to Palestinian people, not Kerry, Haaretz.Com, July 20, 2013.

6 This is not due to any bias on the Prosecutor’s part. Rather, Africa has a large number of countries that have both accepted the Court’s jurisdiction, and are the sites of mass atrocities and bloody, prolonged wars. Indeed, most of the African cases were so-called “self-referals,” where a country invites the ICC in itself to help it prosecute criminals it could not handle itself; and another two were referred to the Court by the Security Council.

7 Most people would be unaware that countries such as Columbia and Russia are subject to preliminary investigations by the prosecutor.

8 Human Rights Council, Report of the independent international factfinding mission to investigate the   implications of the Israeli settlements, par. 17, 104, U.N. Doc. A/HRC/22/63 (Feb. 7, 2103).

9 Current situations include the activities of the genocidal Lord’s Liberation Army in Uganda, the crimes against humanity in the Congo, the genocide in Darfur, war crimes in the Central African Republic, the use of child soldiers and other brutalities during the  civil war in the Cote d’Ivoire, the Islamist oppression in Mali, Qaddafi’s repressive campaign during the Libyan civil war, and the ethnic massacres surrounding Kenya’s elections.

10 See Rome Statute of the International Criminal Court, Art. 12(2), U.N. Doc. A/CONF.183/9*.The Security Council can also refer a case to the Court, as it did with Libyan and Sudan/Darfur.

11 Sung Un Kim, ICC lacks jurisdiction to investigate Palestine war crimes claims: prosecutor, Jurist (April 3, 3012).

12 The Situation in Palestine, par. 5-8, available at http://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9­4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf.

13 U.N. Doc. A/RES/67/19. Only the Holy See currently shares the status, though in the past a number of other nations, such as Switzerland and Spain have had it.

14 See Mahmoud Abbas, The Long Overdue Palestinian State,  N.Y. Times A27 (May 17, 2011) (“Palestine’s admission to the United Nations would pave the way for the internationalization of the conflict as a legal matter, not only a political one.). See also Ethan Bronner & Isabel Kershner, Palestinians Set Bid for U.N. Seat, Clashing With U.S., N.Y. Times A1 (Sept. 17, 2011) (“One goal of the move is to gain admission to a range of international legal and diplomatic forums where complaints against Israeli occupation and settlement could be pursued.”).

15 See Chris McGreal, Palestinians warn: back UN statehood bid or risk boosting Hamas, The Guardian(Nov. 27, 2013), available at (mentioning the U.S., U.K., and France as among nations wanting to link an affirmative vote to promises of avoiding the ICC).

16 See, e.g., George Bishart, Why Palestine Should Take Israel to Court in The Hague, N.Y. Times ( Jan. 29, 2013); Aeyal Gross, Following UN vote on Palestine, Israel may now find itself at The Hague, Haaretz (Dec. 2, 2012); Christine Hauser, New U.N. Status for Palestinians Could Open Door for Claims of Israeli War Crimes, N.Y. Times A8  (Nov. 30, 2012).

17 Interim Agreement, Art. XVII.1.a, article XVII.2.c, article XVII.4 (1995); Interim Agreement Annex IV, Art. II(c).

18 Dapo Akande, The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits, 1 J. Int’l Crim. J. 618, 621-34 (2003)

19  Id. at 619-21 (describing American objections to jurisdiction over non-party nationals).

20 Art. 12(2)(a).

21 See Schabas, Introduction to the international criminal court 82.

22 See id. at 88 (“the actual limits of the territory of Palestine are also a matter of dispute”); David Luban, Submitting to the Law of Nations: Palestine, Israel, and the International Criminal Court, Boston Rev. (Dec. 12, 3012) (“The ICC is a special-purpose criminal court, and it would be astounding for it to get out in front of the UN’s own court on a fundamental question about the map of the world.”)

23 Schabas, Introduction to the international criminal court at 82.

24 IV Geneva Convention Relative to the Protection of Civilians Art. 2, par. 2 (1949).

25 William A. Schabas, An Introduction to the International Criminal Court 82 (2011) (observing in regard to areas without an established sovereign that “some territories are necessarily beyond the reach of the Court,” and jurisdiction could only be secured by the nationality of offender).

26 See Madeline Morris, High Crimes and Misconceptions: The ICC and Non-Party States, 64 Law & Contemp. Prob. 12, 25-26 (2001)

27 See Akande, Nationals of Non-Parties, supra, at 626-27.

28 See Morris, supra at 28 & n.72 (using child soldiers as example of ICC crime not subject to UJ).

29 See Akande, Aggresion, at 26.

30 Additional Protocol I to the Geneva Conventions treats an expanded version of the “transfer” norm as a “grave breach.” Some argue the Optional Protocol has acquired customary status – despite not being ratified by major powers such as the U.S., India, Pakistan, Turkey, and of course, Israel – but there is no evident state practice to support such a custom.

31 The occurrence of conduct on the territory of a member state is a jurisdictional fact and thus one the Court must convince itself of.

32 See Status of Palestine in the United Nations, U.N. Doc. A/67/L.28, par. 2 (Nov. 12, 2012).

33 Id. (emphasis added).

34 Id. at 5.

35 See Dapo Akande, ICC Prosecutor Decides that He Can’t Decide on the Statehood of Palestine. Is He Right?

36 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ 2004).

37 Id., par. 52-54; see also Separate Op. of J. Higgins, par. 17.

38 Thus the Court recognizes that the Mandate created international “territorial boundaries,” while the 1949 Armistice Agreement did not. Id. at par. 71-72. The Court’s repeated references to “Occupied Palestinian Territory”, a term taken from the language of the G.A. request for an opinion, do not involve any determination that the territory “belongs” to the Arab population. Rather, it is that portion of Mandatory Palestine that Israel forcibly occupied in 1967, after ousting the Jordanian occupation. Par. 73.

39 Consequences of Construction, Par. 121 (emphasis added).

40 Italy v. France, United Kingdom, and United States, ICJ Rep. (1954) at 19.

41 See Dapo Akande, Prosecuting Aggression: The Consent Problem and the Role of the Security Council, Oxford Institute for Ethics, Law and Armed Conflict Working Paper, at 26 (May 2010).

42 http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20statements/statement/Pages/otp-statement-14-05-2013.aspx

43 Rome Statute, Art. 17(b).

44 Similarly, a UN-sponsored international inquiry concluded that “the incident and its outcomes were not intended by” Israel. Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident (Palmer Report), pg. 4 (Sept. 2011).

45 Gul Tuysuz, CNN, Trial opens in Turkey against Israeli military officers in 2010 ship raid, Nov. 6, 2012.Turkey launches 5th hearing of Mavi Marmara trial, TurkishPress.com, May 20, 2013, available at http://www.turkishpress.com/news.asp?id=385074.

46 Yonah Jeremy Bob, ‘Turkey Marmara trial a cynical political process’, Jerusalem Post, Feb. 20, 2013,

47 http://www.icc-cpi.int/NR/rdonlyres/04D143C8-19FB-466C-AB77-4CDB2FDEBEF7/143682/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf, pg. 9

48 http://www.ejiltalk.org/court-between-a-rock-and-a-hard-place-comoros-refers-israels-raid-on-gaza­flotilla-to-the-icc/

 

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