In a prior post, I examined the Rome Statute of the International Criminal Court, which contains an important provision directly designed to target Israel.
Now we’ll turn to the Court as an institution. In the wake of the Palestinian turn to the International Criminal Court, several commentators have argued that there is no reason to think the institution is out to get Israel. That is true. Of course, the Court has done so little in its twelve year history, that it is hard to say much with confidence about its inclinations and proclivities. And prosecutions of Israelis (nationals of a non-member state) would be a kind of activity the Court has never engaged in without the request of the Security Council, so there is even less data.
There is no reason to think the prosecutor or Court are eager for Israel/Palestine cases, and a lot of reasons to think they are not, given the disproportionate political headaches they entail.
Yet there is cause to think that the the Court is a most improper venue for sorting the Israeli-Palestinian conflict. Indeed, even absent any bias, the Court is structured in a way that cannot do equal justice, and is thus properly seen as a Palestinian tool against Israel. Moreover, recent statements by the Prosecutor give troubling evidence that she may be willing to replace legal analysis with the off-the-shelf views of the “international community” on the conflict.
To be clear, I think the most likely outcome from the Palestinian effort is no full investigation of either side, at least any time soon. Rather, I am trying to explain why the Palestinians see the ICC as a good bet – one more likely to break their way than not. This is important because many distinguished jurists and academics not unsympathetic to the Palestinians have warned them that they have more to loose than gain from ICC proceedings. But they went ahead anyway, which means they have a different analysis – one that I try to reconstruct here.
The Court’s track record suggests it is incapable of rendering impartial justice in an ongoing bilateral conflict. The Court is not some well-established, Olympian seat of judgment. Rather, it is a weak, conflicted and floundering institution, beset by profound embarrassments that might affect its decision-making. It has completed only three cases, with two convictions. Most recently, it has seen two of its highest-profile matters – the only ones involving sitting heads of state – disintegrate. These were the prosecutions of Kenya’s president for election violence, and of Sudan’s president Bashir, for genocide. Both proceedings failed because of the persistent, and in the case of Kenya, subtle, non-cooperation of the target regime. (Despite their current embrace of the ICC, the Palestinians have long been on record opposing the ICC’s arrest warrant against Bashir.) The ICC has proven itself completely incapable of prosecuting a case against an unwilling regime, especially an authoritarian or illiberal one.
This is in part why the Palestinians have turned to the ICC, despite warnings from even some of their sympathizers that they will be subject to multiple possible prosecutions for war crimes. The Kenyatta case has created a playbook for countries wanting to frustrate ICC proceedings, especially if they have little to fear in the way of sanctions. (I do not discount the importance of domestic pressures behind the Palestinian decision, but I assume that this would not have been enough if the leadership though itself even remotely likely to be put on trial.)
Thus while Israeli Prime Minister Netanyahu threatens that the Palestinians have more to fear from the ICC than they do, this is only in theory. In practice, the Palestinians are so-to-speak “judgment proof.” First, noncooperation is easy in place where the killing of “collaborators” is institutionalized. This will make Kenyatta’s witness intimidation look like gentle nudging. No one in Gaza will say, “hey, there was a Hamas launcher in this school here.”
Professor Eugene Kontorovich will be a guest of SHURAT HADIN’s organization, in its first legal conference, “Towards a New Law of War,” scheduled for the Dan Jerusalem Hotel on Monday and Tuesday, May 4 and 5, 2015.
The Conference, planned as an annual event, will bring together eminent academics, lawyers, policy makers and military leaders to exchange ideas regarding the laws governing Western democracies as they battle non-traditional, non-democratic, non-state actors.
For more information on the Shurat HaDin website