Palestinian threat to take Israel to the ICC is overblown

By YONAH JEREMY BOB, JPOST 11/30/12

Legal scholars have latched on to the ICC prosecutor’s decision to deny the Palestinians access to the ICC.

As this article goes to print, history is being made with a UN General Assembly vote to endorse the state of Palestine.

Israeli media coverage has at times – and in worst estimates – portrayed this event as a legal-diplomatic tsunami that could engulf Israeli leaders, soldiers and settlers at the International Criminal Court.

Many legal scholars have latched on to the ICC prosecutor’s April decision to deny the Palestinians access to the ICC at that time, as leaving the door ajar for just this moment.

But top current and former government officials as well as other legal commentators – who spoke on condition of anonymity due to the sensitivity of the issue – say the threat is overblown. They say that some Palestinian spokespeople threatening ICC action for everything from settlements to what many view as the farfetched claim of poisoning former Palestinian leader Yasser Arafat, have made it a mantra that is thrown around without much thought.

The hard realities of what attempted Palestinian action at the ICC would mean for the Palestinians is another matter entirely.

It is true that “Palestine’s” UN representative will get moved from the observers’ seats to sit with the other states whose names start with “P” and that within the UN organizational system, it will likely be accepted to many new organizations.

But the ICC, as it says on its website, is not a UN organization.

It is a judicial organ which is entirely independent politically and financially.

Also, if it took the ICC prosecutor three years to decide whether or not to open a formal investigation, let alone file an indictment, any actual case at the ICC could easily take eight to 10 years, with highly doubtful results.

Hardly an exclamation point for statehood.

Even some pro-Palestinian legal commentators say going to the ICC, presuming the considerable obstacles to access are overcome, would be a gross tactical error. Some have admitted that once the playing field moves from public relations to law, the Palestinians are at a distinct disadvantage.

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Any war crimes case against Israelis would have to sift through highly complicated and gray questions of proportionality and deciphering the highly specific military situation with no real way of proving intent.

In contrast, Palestinian indiscriminate rocket attacks, suicide attacks, shootings and other terrorist actions are unequivocally war crimes with intent being self-evident, say the sources.

Also, the ICC generally does not get involved if a country investigates itself, as Israel claims it does, including Israel’s unusually frequent judicial review by the High Court of Justice.

While this could prevent ICC cases against Israel, the Palestinians have a fraction, if any, of the self-investigating legal mechanisms Israel has, again making them an easier target for the ICC than Israel, the sources said.

Essentially, the sources say that the prosecutor would be convicting Palestinian war criminals long before it was finished sifting through the complicated evidence in any case against Israelis.

The sources, including pro- Israel and pro-Palestinian officials and commentators, also say that it might be “suicidal” for the ICC to wade into the most politicized conflict in history.

They argue that the court’s long-term legitimacy is more important than any individual investigation, no matter how deserving the case might be.

Moreover, the ICC has worked hard to draw in US involvement in the post-Bush years (the former US president was opposed to the ICC while the US was involved in multiple wars and controversial anti-terror policies), and there is virtually no question that cooperation would come to a full halt if the ICC brought cases against Israelis.

Many other key nations in Europe might also withdraw ICC support, and the UK seems to be conditioning its support for the Palestinian bid on the condition that it not try to use the ICC afterward.

Unlike the UN General Assembly, the ICC’s legislative body, the Assembly of State Parties, tries harder to operate by consensus, and many votes require a two-thirds majority.

The sources also estimate that new ICC Prosecutor Fatou Bensuda is less interested in the limelight than former prosecutor Luis Moreno-Ocampo who, while denying Palestinian access to the ICC, spent significant time in the headlines on the issue.

Bensuda has been described by several sources, including some who know her personally, as being more focused on legal-professional concerns and foremost on protecting the ICC’s standing.

One issue clearly important to Bensuda, highlighted recently on the UCLA Human Rights International Law Forum blog, which the prosecutor’s office participates in, is the question of whether the ICC can get convictions for mass rape without the testimony in court of the victims.

The sources say that such important issues to Bensuda would be drowned out in an instant in the media circus that would follow a case against Israelis.

Overall, the sources say that this is more about Abbas getting a moment in the sun than achieving a real legal victory.

But to those Palestinians charging toward the entrance to the ICC chambers, these sources advise: Be careful what you ask for.

International Criminal Court Jurisdiction Over Israeli Settlements

by Eugene Kontorovich, The Volokh Conspiracy

Here is the abstract:

In the wake of the U.N. General Assembly’s recent recognition of Palestinian statehood, the Palestinian government has made clear its intention to accept the jurisdiction of the International Criminal Court (ICC), where it could challenge the legality of Israeli settlements. This Article explores the previously unexamined jurisdictional hurdles for such a case. (To focus on the jurisdictional issues, the Article assumes for the sake of argument the validity on the merits of the legal claims against the settlements.)

First, the ICC can only consider situations “on the territory” of Palestine. Yet the scope of that territory is undefined. An “occupation” can arise even in an area that is not the territory of any state – but ICC jurisdiction does not extend there. 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 Palestine. Moreover, the ICC lacks the power to determine the boundaries of states, and certainly of non-member states. Moreover, the Oslo Accords give Israel exclusive criminal jurisdiction over Israelis in the West Bank. Palestine cannot delegate to the ICC territorial jurisdiction that it does not possess.

Second, the ICC only takes situations of particular “gravity.” Yet settlements are not a “grave breach” of the Geneva Conventions. No international criminal tribunal has ever prosecuted non-grave breaches. The ICC’s gravity measure involves the number of people killed; for settlements it would be zero. Indeed, the ICC prosecutor triages situations by the numbers of victims; settlements do not appear to have direct individual victims. Finally, the ICC would at most only have jurisdiction over settlement activity from the date of Palestine’s acceptance of jurisdiction. Settlement activity in this time frame would not immediately cross the Court’s gravity threshold.

The impact of these issues goes beyond a possible settlements case. The controversy over a referral of Israel, a non-member state, raises important questions about the meaning of the ICC Statute. These have great importance for other non-member states, such as the United States. They also demonstrate the extent to which major aspects of the ICC Statute remain vague and undefined.