War Crimes in Gaza: Why Isn’t the International Criminal Court Part of the Solution? (Forbes.com) October 13, 2014Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
Twelve years and $1 billion ago, a new International Criminal Court was born. Its stated goal was to prosecute war crimes, genocide and crimes against humanity so that rulers could not continue to commit these acts with impunity. One naturally asks, then, why such crimes continue unabated, why after more than a decade and $1 billion of expenditures the Court has only managed to convict two Congolese warlords.
The answer is that partly limited by design, and flawed in its execution, the ICC has not turned out to be an effective weapon against such criminal acts. The Court’s arrest warrant for Al Bashir of Sudan is ignored. Crimes against humanity in Egypt are not actionable because that country is not a member of the Court. On we go, until we reach the conclusion that the ICC is yet one more international institution that has overpromised, overspent and under delivered.
One of the trickiest venues for the ICC has been in Gaza, where terrorist attacks and military responses break out with regularity. After Operation Cast Lead in 2008-09, the Palestinian National Authority sought to submit possible war crimes and crimes against humanity by Israeli forces to the Court. The Prosecutor correctly responded that since Israel was not a party to the Court and Palestine was not a state, he could not accept the case. Under political pressure from the Court’s constituencies, he subsequently reconsidered, spending nearly three years to reach the same conclusion.
With the recent violence in Gaza, many expect the Palestinians to submit a new case to the ICC, arguing that a United Nations General Assembly vote in 2012 making Palestine a nonmember observer state changes the question of ICC jurisdiction. In fact, the new Prosecutor of the Court, Fatou Bensouda, recently asserted that this vote makes it possible for Palestine to accede to the Court’s statute and jurisdiction. To which I would respond: not so fast!
Statehood is a highly complex matter that is not necessarily resolved by a U.N. General Assembly vote. International law establishes several objective tests for statehood, with the generally accepted criteria including (1) a permanent population, (2) a defined territory, (3) a government and (4) the capacity to enter into relations with other states. (Montevideo Convention on the Rights and Duties of States, 1933). Essentially all those questions are still open in the case of Palestine. And if Palestine does not meet the required criteria, it is not a state, no matter what the General Assembly might say. These votes in the U.N., in case you haven’t noticed, tend to be more in the nature of pep rallies than legal assessments. Israeli diplomat Abba Eban once said, “If Algeria introduced a resolution declaring that the earth was flat and that Israel had flattened it, it would pass by a vote of 164 to 13 with 26 abstentions.” The actual vote to make Palestine a nonmember observer state was 138-9 with 41 abstentions. This was a practical and political vote—should Palestine join the Vatican as an observer– not a legal one.
While we’re being practical, Palestine would have a lot to lose by bringing the ICC into Gaza, since it would be vulnerable to prosecution right along with Israel. And, on the political side, the U.N. Security Council—which has declined to make Palestine a state—could vote to stop the ICC from bringing a case if it chose to do so, a distinct possibility given the sensitive nature of all the Middle East negotiations.
Seeking recognition, along with the Holy See, as a nonmember observer state was one of several steps Palestine has taken in recent years to strengthen its case for statehood. But I disagree with the Prosecutor of the International Criminal Court that this is the last word on Palestinian statehood, even for admission to the ICC itself. That should come, if it does, by the hard work of further negotiations, not a mere vote in the U.N. General Assembly.