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The Palestinian End Run (Townhall.com) November 4, 2011

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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

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Prosecuting Israelis? (Townhall.com) September 30, 2011

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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

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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?

Next, the 20th Secretary of the Air Force, James Roche joins Frank to educate us on the situation unfolding in the Air Force and Navy due to defense budget cuts. According to Roche, the current situation is not unlike that of the Carter administration. Since the Reagan administration, American presidents have continued to use existing material while not replenishing the resources. Therefore, the Navy and Air Force have shrunk dramatically and most of our equipment has become outdated. Additionally, Congress has prohibited any solider in uniform from making an acquisition decision. This is an example of how bureaucracy tries to find fault with everything, including the defense budget. This is merely a lack of understanding history, argues Roche, who uses the example of Britain’s once all mighty naval power. By following the socialist trends in Europe, the United States will continually weaken their naval and military power. Only if the United States continues to be strong in national security, can we continue to hold onto our self-reliance.

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

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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.
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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

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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 Criminal Court / Palestine (John Batchelor Show, WABC-AM 770 New York) October 28, 2010

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Below is a link to the radio interview podcast.  David’s interview is the third segment:  http://podfuse-dl.andomedia.com/800185/podfuse-origin.andomedia.com/citadel_origin/pods/WABC/WABC-Batchelor/source/jbs_102810dd.mp3

The Palestinian End-Run (AdvancingAFreeSociety.org) October 27, 2010

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For years the Middle East peace process has waxed and waned over the difficult question of forming a new Palestinian state. It might be surprising to know, then, that I just returned from the International Criminal Court in The Hague where the Palestinians are apparently attempting an end-run around the Middle East peace process to get international institutions such as the ICC to recognize a Palestinian state, with no negotiation or compromise at all.

It began in January, 2009 when the Palestinian Authority filed a submission asking the Prosecutor of the ICC to take jurisdiction over all war crimes or crimes against humanity that may have been committed by Israel during Operation Cast Lead in Gaza in December, 2008. The Prosecutor of the Court rightly said he had no jurisdiction since Israel is not a party to the Court and Palestine is not a state. Since, then, he has been reconsidering whether some creative theory of statehood might lead to a different result.

The Prosecutor invited eight experts on international law to discuss the matter and inform his eventual decision. If he decides he has jurisdiction, it will have huge political implications on the Middle East peace process, as well as open the doors of the court to independence movements all over the world.

To view the article on Hoover’s Website:  http://www.advancingafreesociety.org/2010/10/27/the-palestinian-end-run/

David Davenport’s remarks to the ICC Prosecutor’s forum on the Palestinian Declaration Concerning Gaza October 20, 2010

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INTRODUCTION

Mr. Prosecutor, the matters before us today are interesting, important and difficult. But may I submit to you that they are really more interesting today as academic debates in a journal or forum. They are difficult primarily for a political body such as the UN Security Council, or a policy-making body, such as the Assembly of States Parties. They are less difficult for a prosecutor of a criminal court whose discretion is limited in such matters to the law as it is, as it was when the alleged crimes took place.

Very briefly I will list three reasons why the OTP’s decision here is actually relatively clear.

I.  The Treaty of Rome and the ICC are State-Based, with their Jurisdictional Provisions Carefully Negotiated and Precisely Stated

I know there are those who believe the state-based underpinnings of international law or too limiting, even anachronistic, and need to be changed. They argue, as one paper asserts here, that the court should not be limited by the literal meaning of a word like “state,” that the Court is free to make up its own meaning based on practical realities.  Another urges a so-called teleological approach where everything is defined by the ultimate purposes of the treaty.

But first, every account of the negotiation of the Rome Treaty—whether by the founding president of the Court, or one of its distinguished judges, or by scholars and observers—agrees that the jurisdictional aspects of this Court were the most hotly debated topics in Rome.  Some wanted a court of very limited jurisdiction while others sought an expansive court of universal jurisdiction.  In the end, Article 12, with its clear limitation to states, was part of that elaborate negotiation and compromise, one not subject to redefinition by the OTP or even the Court itself.

Second, the last place where law would countenance teleology or creative expansion is in a criminal court, where the law rightly requires that clear, bright lines be drawn and followed.  Why?

–Because of the extremely serious consequences of criminal prosecution.

–Because defendants deserve to know where the lines of criminal conduct and criminal jurisdiction are drawn.

–Because criminal matters cannot be redefined to, in effect, create jurisdiction after the fact.

On this point, I think everyone at Rome in 1998, and everyone familiar with the Court in 2008 when the acts complained of here occurred, would have said precisely what you did when first presented with the matter:  Israel is not a party to the Court and Palestine is not a state, so there is no jurisdiction.

That being so, it is really not the role of criminal courts and criminal prosecutors to go back now and define terms beyond their obvious meaning.  That debate, if it is to be had at all, must be held in a political body, such as the U.N. Security Council, or in a policy-making body, such as the Assembly of States Parties, not in the OTP of a criminal court.

II.   A Decision that the Palestinian Declaration is Sufficient Under Article 12 Would Have Profound Consequences

A.  Loss of confidence in the Court

One set of reservations about the Court from the beginning has been whether it would seek expansive jurisdiction or would become engaged in primarily political matters.  To its credit, the OTP has largely steered clear of such concerns, but a finding that “state” means more than “state” will erode confidence in the Court.

B.  Inappropriate intrusion in the Middle East peace process

It’s simply not possible for the Court to make a limited finding of statehood for Article 12(3) purposes without having other repercussions on the Middle East peace process.  The two-state solution, the Oslo Accords (with their limits on the PA’s external relations capabilities), and the complex situation on the ground in Gaza are all bound up in this.  I even have concern that by considering an investigation for a year and a half, the Court is already too deeply involved in the Middle East peace process, given its charter.

C.  Open door to non-state entities seeking international validation

Is the Court really prepared to entertain submissions from Chechnya, North and South Ossetia, Tibet, or groups from Sudan, Iraqi Kurdistan or the Basque region?  The limited resources of the Court could easily be consumed by its becoming a step on the road to statehood, following any decision to accept the Palestinian submission.

III.  Preventing Impunity Leads to No Different Conclusion

The Court, of course, seeks to prevent impunity, but only within its own carefully drafted charter and limits.  To say that if the Court does not act, its purposes will not be served is simply incorrect:

A.  It is a matter which Israel itself can, and has, taken up within its own legal systems.

B.  The U.N. Security Council, which has been the primary decision-maker on war crimes prosecutions, also has jurisdiction to act, jurisdiction, which, I might add, will be taken inappropriately if the Court acts here.

C.  Even individual states with laws of universal jurisdiction may bring actions here.

So it is simply not true that, in the absence of action by the ICC, no one else may act and impunity will result.

I would urge the Prosecutor to exercise restraint and not intervene further in this matter.

News Coverage of ICC Prosecutor’s Forum (New York Times) October 20, 2010

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Below is the link to the article that appeared in the NY Times entitled “Palestinians Consider Shift on Statehood” by Ethan Bronner, October 20, 2010http://www.nytimes.com/2010/10/21/world/middleeast/21mideast.html?src=twrhp