The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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."
Nor will the Palestinians be punished for non-cooperation—just as Kenya and Sudan have not. Indeed, it is likely that the Palestinians will claim that as a "state under occupation" they simply cannot cooperate with investigators on-the-ground since they will claim they are (for these purposes) under Israel's thumb. In Israel, on the other hand, a bevy of Israeli NGOs will be lined up to supply the prosecutor with the dirt on alleged Israeli misdeeds, and many jurisdictions are only looking for an occasion to impose sanctions on Israel.
In short, unless one ascribes to the Palestinian leadership a heroic level of altruism, their accepting the Court's jurisdiction despite their well-documented war crimes suggests they at least think the Court will systematically break their way.
Some have argued that despite the rampant bias against Israeli in United Nations organizations, there is no reason to suspect partiality from the Court, composed of jurists from around the world and charged with acting apolitically.
Unfortunately, the Prosecutor has already revealed that "political" decisions (i.e., General Assembly resolutions) will not be separated from the legal, but rather will be adopted in place of legal standard. In her recent memo on the Gaza flotilla matter, the Prosecutor concluded that, despite Israel's complete withdrawal, Gaza is occupied because the "international community" thinks it is. This disturbing move undermines the ICC's independence by importing the political judgments of the GA and substitutes them for legal standards.
Disturbingly, the prosecutor ingnored existing legal definitions and precedents about the duration of "occupation," and instead simply plugged in the conclusions of GA resolutions.
"Belligerent occupation" is a legal term with legal definitions. One is supplied by the International Committee of the Red Cross, whose own manual provides that:
Occupation ceases when the occupying forces are driven out of or evacuate the territory. (emphasis in the original)
Furthermore, the question of occupation without troops is not one of first impression. The International Court of Justice in 2005 ruled that Uganda's control of areas of the Democratic Republic of Congo through an allied militia does not amount to an occupation, despite Uganda's significant clout there; by extension the control of Gaza by a hostile militia could not be considered an occupation. The prosecutor never even bothered dealing with the recent ICJ precedent. To be sure, in the flotilla memo the prosecutor was merely deciding a preliminary jurisdictional question and did not need legal certainty.
The lazy substitution of General Assembly conclusions for actual legal standards and comparison to comparable cases is troubling, but doubtless encouraging to the Palestinians. Of course, litigation always results from someone's misplaced optimism.