The ICC and Palestine: A Response (OpinioJuris.org) April 6, 2012
Posted by daviddavenport in Policy Articles & Papers.Tags: International Law
comments closed
In the end, the Prosecutor of the International Criminal Court made the only “legal” decision he could: the ICC has no jurisdiction to act on the complaint of the Palestinian National Authority since Palestine is not a State and the Court is limited to accepting submissions by States. The only case in favor of jurisdiction was always a set of political arguments in search of a valid legal vehicle that was never found. Typical of such extra-legal arguments is a previous post pointing out that, since the submission in 2009, the political case for Palestinian statehood has grown stronger, when the only legally relevant time was when the acts complained of took place (2002-early 2009). Or a previous post’s argument that went straight to political motives—that Prosecutor Moreno-Ocampo “contrived to reject the existence of the state of Palestine”—when, again, the proper issue before a criminal court was whether its own jurisdictional requirement was satisfied.
The real problem here was Palestine’s unsuccessful effort to find a legal hole through which to pound a political peg. A court that prosecutes individuals for criminal liability is the last place where one would countenance teleological and expansive notions of jurisdiction. Those debates belong in political bodies, not in criminal courts. This was, of course, part of Palestine’s larger campaign to find international institutions that might punch its ticket on the road to statehood, a project that has stalled out at the ICC and elsewhere.
So, what now? Surely Ocampo’s decision is binding on the Office of the Prosecutor, practically if not legally. How can a prosecutor undertake this bizarre process of accepting submissions from nearly everyone, posting them on the Internet, hosting salons, and sitting on the question for three years, only to reverse itself later? If it is to be credible, the OTP cannot reconsider this without further action by a political body such as the United Nations. And Ocampo’s suggestion that the Assembly of States Parties might also “in due course” or “eventually” address the matter was mentioned following his guidance that all this requires statehood action by the United Nations. Surely this means that ASP review would only be to implement any action by the U.N.; nothing in the Rome State implies any larger ASP role in statehood matters in any event.
Importantly, any future action toward statehood could only enable Palestine to bring the Court a situation after statehood is determined, since the ICC is unable to take up matters retroactively. Thus, this is clearly the end of the line for any ICC complaints about the events raised in the PNA’s declaration of 2009.
To view the op/ed please click on the link: http://opiniojuris.org/2012/04/06/the-icc-and-palestine-a-response/
International Criminal Court Prosecutor Resists Palestinian End-Run (Forbes.com) April 4, 2012
Posted by daviddavenport in Policy Articles & Papers.Tags: International Law
comments closed
For three years, the Prosecutor of the International Criminal Court in the Hague has been trying to decide whether he had jurisdiction over Israel for alleged war crimes in Gaza. Even though the legal answer (“NO”) seemed obvious from the start, both politics and the inevitable expansionist agendas of international courts kept the question alive and Israel potentially subject to the Court.
Finally this week the Prosecutor announced that he would not pursue the investigation of Israel “for acts committed on the territory of Palestine since 1 July 2002.” For now, this closes off yet another legal front of attack on Israel, and also thwarts another end-run by Palestine around the path by which Palestinian statehood is supposed to be resolved; namely the Middle East peace process and the United Nations.
The interesting question is why it took so long for the Prosecutor to reach what seemed like a no-brainer outcome from the start. In January 2009, the Palestinian Minister of Government filed a submission with the ICC asking the Court to take jurisdiction over Israel’s actions in Gaza. But the Court’s own rules require that any matters submitted must come from a “State.” Since Israel is not a party to the treaty creating the Court (nor is the U.S. and 70 or so other nations), and since Palestine is neither a party nor a State, it seemed obvious to most international lawyers that the ICC had no jurisdiction over the matter.
This is precisely what Prosecutor Luis Moreno-Ocampo concluded at first, that he had no jurisdiction. But a few weeks later, he reversed field and said he wanted to think further about whether Palestine might have sufficient earmarks of a State to submit a case to the Court. And so the hunt for those earmarks began. Some argued, for example, that because Palestine walks like a state and talks like a state, it therefore must be a state. Only in the vagaries of international law might one describe such a legal argument as “teleological” and therefore be taken seriously. Others said that because some states interact with Palestine as a state, it must be a state.
But when you look at the list of nation-states that belong to the United Nations, Palestine is not there. Instead it is listed as an “observer” at the U.N. And when you review those who attended the meetings creating the International Criminal Court itself, again Palestine is not listed as a state, but rather as one of the “other organizations” in attendance. Indeed, Palestinian officials themselves have long admitted that statehood is their objective, not something they have already attained.
Yet the ICC Office of the Prosecutor spent three years pursuing a lengthy and, for a prosecutor, almost bizarre process of consideration. First, prosecutors entertained “submissions”, not only from parties but from anyone, really, who had something to say. Memoranda were filed by human rights organizations, NGO’s, academics and countless others, with many of these posted on the Prosecutor’s website. Then the Prosecutor invited eight international lawyers who had made submissions, to come to the Hague for a chat about the matter. If it’s difficult to imagine your local prosecutor holding afternoon tea sessions to discuss whether to prosecute war criminals, again welcome to what passes as the world of “international law.”
It is both interesting and important to understand why the Prosecutor took so long with this question. For one thing, the impulse of international organizations is inevitably to expand their jurisdiction. They want more power and influence, not less. Since the purpose of the ICC was to halt impunity for war crimes, genocide and crimes against humanity, the human rights organizations that were behind formation of the Court worry less about legal niceties such as jurisdictional rules and want broader jurisdiction. The Prosecutor himself may share those views but, at the very least, he feels pressure from those who founded this relatively new court in 2002, a court that only recently completed its first trial.
The Prosecutor also faces political pressures that he is only bringing cases against Africans and not those from other, more powerful countries. Indeed, virtually all of his early investigations have been against Africans and perhaps he needed to keep this case alive, if only to demonstrate some balance. Further, he may have been under pressure to keep his hand in the Middle Eastern peace process, holding the threat of prosecution over Israel’s head. And, the ICC could have been one more ticket for Palestine to punch in its effort to receive recognition from international organizations and move along toward its goal of statehood.
But in the end, all those political pressures could not find a proper legal argument to carry the day, and the Prosecutor had to admit that the question of statehood, and therefore the ability to bring cases to the ICC, was really a decision for the United Nations, and not for the Court. Imagine, though, all the time, effort, frustration, and political leverage that were invested in a decision that could and should have been reached three years ago.
To view the article please click on the link: http://www.forbes.com/sites/realspin/2012/04/04/international-criminal-court-prosecutor-resists-palestinian-end-run/
The Prosecutor of the International Criminal Court Makes a Sensible, if Delayed, Decision (Advancing A Free Society) April 3, 2012
Posted by daviddavenport in Policy Articles & Papers.Tags: International Law
comments closed
The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) announced today that it would not pursue an investigation of Israel for “acts committed on the territory of Palestine since 1 July 2002.” This closes off, for now, an attempt by Palestine to draw the Court into its dispute with Israel over alleged war crimes in Gaza during Operation Cast Lead in 2008-09.
But there is an even larger story here about whether the relatively young Court (established in 2002) would seek to expand its jurisdiction and play a role in deciding whether Palestine is already a state. To that the answer is “no, for now.”
The Minister of Justice of the Government of Palestine filed a submission with the Court in January, 2009, asking the Court to take jurisdiction of the matter and open an investigation. But the Court’s own rules limit submissions to “States,” so from the beginning the key question was whether Palestine was a state for this purpose.
The Prosecutor, Luis Moreno-Ocampo, seriously entertained the question for three years, following a remarkable prosecutorial process of inviting outside submissions, posting briefs on the Internet, and hosting roundtable arguments in his offices in The Hague. He seemed open to the possibility that the definition of “State” for purposes of the ICC might be different than a “State” in international law generally. He spent three years looking at arguments that Palestine possessed this or that mark of statehood. One sensed that he was under political pressures to open the doors of the Court more widely to take this case.
In the end, the Prosecutor said it was really up to the United Nations to decide what is a “State” and that, so far, Palestine was only treated there as an observer. It thus becomes a political decision for the U.N., rather than a legal decision for an international court, which was surely the right answer all along. The lengthy process for what should have been a straightforward decision reminds us of the dangers of these politicized and expansionist international courts.
To view the article please click on the link: http://www.advancingafreesociety.org/2012/04/03/the-prosecutor-of-the-international-criminal-court-makes-a-sensible-if-delayed-decision/#more-5729
The Palestinian End Run (Townhall.com) November 4, 2011
Posted by daviddavenport in Radio Commentaries.Tags: International Law
comments closed
The Palestinian campaign for statehood marked one more notch towards
Courtesy of Townhall.com
victory when the U.N. cultural arm, UNESCO, voted to admit them to membership. But the win came at a high price—the U.S. will end its financial support, which comprises 22 percent of the agency’s budget.
There is an established and objective test for statehood, which Palestine does not meet. But in recent years, a competing postmodern approach says, if other nations think you are a nation-state and treat you as one, then you must be one.
It is this kind of international legal nonsense that Palestine is pursuing, seeking to get its statehood card punched by every international body and nation it can. The U.S. is right to oppose this end-run by vetoing it in the Security Council, voting against it elsewhere, and declining further funding to bodies that give into it. Otherwise international law reflects little more than the mood of international leaders on a given day.
To listen to the audio please click here: http://townhall.com/talkradio/dailycommentary/628327
Prosecuting Israelis? (Townhall.com) September 30, 2011
Posted by daviddavenport in Radio Commentaries.Tags: International Law
comments closed
Many close observers ofPalestine’s bid for statehood at the U.N. believe their primary motive is to join the International Criminal Court and seek charges againstIsraelfor war crimes inGaza. But it’s not at all clear that will happen.
The Palestinian Authority has worked for over two years to get the ICC to bring charges and the Prosecutor rightly seems reluctant to wade into those political waters. Even at the U.N., the Secretary General has declined to comment on whether “observer state” status would permitPalestineto join the ICC, and some believe he will try to avoid the issue as long as possible.
The fact is that U.N. bureaucrats and international courts should not decide the complex diplomatic, political and military questions that characterize theIsraelandPalestineconflict. These should be, and whatever the U.N. decides about statehood, will ultimately have to be decided through diplomatic negotiations.
To listen to the audio please click here: http://townhall.com/talkradio/dailycommentary/622190
A Central Part of the Palestinian Identity (‘The Frank Gaffney Show’ Secure Freedom Radio) September 27, 2011
Posted by daviddavenport in Radio Interview Podcasts.Tags: International Law
comments closed
With JAMES ROCHE, ANDY MCCARTHY, DAVID DAVENPORT
Will the reality of a Russian government run by the admittedly authoritarian Vladimir Putin translate into a hurdle for the Obama administration? Frank opens today’s Secure Freedom radio with his thoughts on the subject. When Putin officially becomes President again, this will be the first time in Moscow since 2000 that Russia will acknowledge that there is no power center besides this one man. The Obama administration, as displayed in the past, is completely helpless in stopping this authoritarian rule from continuing. The current administration’s policy towards the Russian government has been based on appeasement of its leaders. Thus, Russian strategic forces are being upgraded with new weapons, as the United States must downgrade its own. By passing the New START treaty, the Obama administration has stopped any production for new nuclear technology and has only forced the US to cut up our long-range nuclear weapons. Why are we allowing such an atrocity to occur while the Russians are able to keep their short-range missiles?
Contributing Editor for National Review Online and weekly commentator on Secure Freedom Radio, Andy McCarthy discusses his desire and America’s need for a competent President during these trying times. In the words of Ambassador John Bolton, President Obama is the “First Post-American President,” who is rejecting American exceptionalism and innovation. McCarthy fears what Obama will do in the one and a half years that he has at the helm of American leadership. Now, in order to gain more financial backing for his re-election campaign, he is catering his policies more towards the Jewish minority. Hurting the situation, the President maintains an ignorant view of foreign policy in regards to Palestine. His administration believes that most Palestinians are in favor of an Israeli state, whereas data suggests that over 90% of Palestinians in their early teens through early 30s deny that Israel has a right to exist. How can our leaders expect the numbers to be any different when it is as central to the Palestinian identity that Israel needs to be destroyed as the First Amendment is to Americans?
Research Fellow and Counselor to the Director at the Hoover Institution, David Davenport gives us a legal lesson on the qualifications for statehood. Currently in international law, there is no clearly defined test to determine whether a territory is or is not a state. There is also no clear body that has the power to recognize a nation as such. However, there are four traditional criteria that determine the legitimacy of a state. The two most important of these criteria are that the state must have a clearly defined territory and have control over this territory. Palestine does not fulfill either of these requirements; therefore, it cannot be considered for statehood. Davenport thinks that the reason they are asking for statehood now is due to their frustration with the Two-State Agreement failing between the cracks.
To Listen to the Podcast please click: http://www.securefreedomradio.org/2011/09/27/a-central-part-of-the-palestinian-identity/
Palestinians eye a can of courtroom worms (The Washington Times) September 22, 2011
Posted by daviddavenport in Newspaper Columns/Essays.Tags: International Law
comments closed
One interesting question raised by the Palestinian statehood initiative at the 
United Nations is how this will affect the role of the International Crimical Court (ICC) in skirmishes between the Israelis and the Palestinians in Gaza and in other conflict zones. Some assert that triggering ICC prosecutions of Israeli soldiers and government officials for war crimes is a primary motive behind Palestine’s push for statehood. But as is often the case in the Middle East, things are more complicated than they appear.
The Palestinian Authority has been pounding on the ICC prosecutors door since January 2009, trying in vain to trigger an investigation into Israel’s alleged war crimes and crimes against humanity during “Operation Cast Lead” in December 2008. The prosecutor of the ICC initially responded that, because Israel is not a party to the court and the Palestinian Authority is not a state, he had no jurisdiction to investigate. But a few weeks later, he reconsidered, and said he would look more carefully at whether the PA might have enough earmarks of a state to bring an ICC claim.
Following an almost bizarre process, the prosecutor has now been thinking about this question for more than 2 1/2 years. He invited briefs and memoranda on the question, many of which he posted online; he held a forum in which the matter was debated (what prosecutor hosts in-house salons to decide whether to bring a case?); and still no decision. What does that tell us? It may tell us this presents complex policy questions but as a legal matter, his first impression that there is no jurisdiction seems obviously right. More likely it tells us this is a political can of worms that he would like to kick down the road until his term ends next year.
Criminal courts are not proper venues to sort out thorny political, diplomatic, military and strategic questions that characterize the decades-long conflict between Israel and the Palestinians in Gaza and other conflict zones. Criminal judges simply do not have the background and expertise to handle such questions, and empowering an independent prosecutor to run around the world turning conflicts into criminal charges does not serve anyone.
Meanwhile, back at the U.N., it appears the United States is prepared to veto actual statehood for the Palestinians at the Security Council, so that “observer statehood” from the General Assembly is the most likely outcome. Can an “observer state” of the U.N. accede to the Treaty of Rome, which created the ICC, and therefore bring a matter before the prosecutor for investigation? And who decides that? These questions are more difficult than they may seem.
It appears that U.N. officials are already running for cover when such questions are asked. Secretary-General Ban Ki-moon has declined to state his position on the matter, though there are unconfirmed reports that he has sought a legal opinion that he would not need to make that decision. Another U.N. official has reportedly said that the secretary-general should accept a request from an “observer state” to join a treaty on file with the U.N., assuming the Palestinians will surely make one. If it takes a prosecutor two or three years to decide whether a nonstate might have jurisdiction to bring a complaint to the ICC, imagine how long this U.N. dance might go on.
Further, the Treaty of Rome is clear that the court does not have retroactive jurisdiction, so a new state party could not bring a matter from the past (Operation Cast Lead in 2008-09) before the court. So even joining the ICC would not enable the Palestinians to bring a matter to the court immediately. And then there are still very difficult territorial questions that would should be resolved – for example, who actually “controls” Gaza? Further complicating matters, the U.N. Security Council has the power both to initiate and to halt an ICC case. Would the United States try to protect Israel from ICC prosecution through the Security Council? Could it get a majority of council votes to accomplish that? As a new party to the court, would the Palestinians investigate their own alleged war crimes and crimes against humanity?
All this underscores the importance of settling statehood through a diplomatic process, not through appeals to U.N. bureaucrats and criminal courts, where the end result is unanswered questions and unintended consequences.
To view the article please click: http://www.washingtontimes.com/news/2011/sep/22/palestinians-eye-a-can-of-courtroom-worms/
Submission to the ICC on Jurisdiction and the Palestinian Declaration May 31, 2011
Posted by daviddavenport in Policy Articles & Papers.Tags: International Law
comments closed
Here is a letter to Luis Moreno-Ocampo, Prosecutor, International Criminal Court by:
- David Davenport;
- Kenneth Anderson;
- Julian G. Ku;
- Edwin Meese III; and
- Abraham D. Sofaer.
Here’s the conclusion:
The time has come to bring an end to the 27-month preliminary examination conducted by the OTP in this matter. The Court must act in accordance with its Statute and respect the clear jurisdictional provisions upon which its mandate is founded. We do not believe there is room for interpretation of the term State, and we fear that the Court may find itself embroiled in political matters. Recent instability and volatility in the Middle East reflect the importance of maintaining a Court that is credible, professional and based on international consensus. Ultimately this will also be the Court’s strongest claim to its goal of universal membership, and its legitimacy to act in those cases where it does possess jurisdiction.
Read the full letter here.
Why Can’t International Law Stop Somali Pirates? (FoxNews.com) November 20, 2010
Posted by daviddavenport in Radio Interview Podcasts.Tags: International Law
comments closed
This is a live radio interview with Greg Jarrett on Fox HQ discussing piracy and why international law jurisdiction in today’s environment is difficult.
To listen to David’s recorded podcast: http://rcpt.yousendit.com/1046551069/50c6d7b48255049494cbe427560d7f76
International Court Resists Palestinian End-Run (Townhall.com) April 17, 2012
Posted by daviddavenport in Radio Commentaries.Tags: International Law
comments closed
For three long years, the Prosecutor of the International Criminal Court has been trying to decide whether he has jurisdiction to investigate Israel for alleged war crimes in Gaza in 2008-09.
Although the legal answer was clearly NO, he faced political pressures to acknowledge Palestine as a state, and to bring Israel, under the jurisdiction of international criminal law.
Finally this month he said no, Palestinian statehood is a question for the United Nations, not a criminal court, and therefore Palestine’s complaint against Israel could not be taken up.
There are good reasons why the U.S., Israel and 70 other nations have not joined this Court because, like many international tribunals, it is often more about politics than law. It took far too long, but at least they got this one right.
To listen to the audio please click on the link: http://townhall.com/talkradio/audioplayer/639975