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A Lose, Lose, Lose Proposition: The ICC & Palestine

unnamed-2By Shawn Macomber • Lawfare Tyranny

Over at Foreign Affairs today Indiana University Maurer School of Law professor Timothy William Waters explores in disquieting detail the ways all involved parties — and many parties that would expressly prefer to remain uninvolved — are about to become painfully, seriously reacquainted with the law of unintended consequences as the world’s most ineffective, politicized court sashays its way into the world’s most intractable, tragic conundrum.

There many macros and micro ideas to parse and explore in future posts, but to begin here are Waters’ thumbnail sketches of a few of the dangers that lie ahead for…

Palestinians

Today, Palestine accepts the jurisdiction of the International Criminal Court—or, put another way, the ICC accepts that Palestine accepts its jurisdiction. This more awkward formulation is more accurate, since what matters is not Palestine’s quixotic quest to join The Hague Court, but the ICC’s acknowledgement that it can…

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[M]embership won’t make life better for average Palestinians; ratifying the International Covenant on Civil and Political Rights, for example, won’t end the occupation. It could even make things worse: The ICC may never actually put Israelis in legal jeopardy, but it can try Palestine’s citizens for their own violations. Standing trial for war crimes is a funny way to prove you’re a state, but if Hamas keeps firing rockets at Israel, Palestinians may get their day in court.

The International Criminal Court

Palestine hopes that the court will prosecute Israeli forces operating in the West Bank and in Gaza. Whatever its merits, a case could cause real trouble for the ICC. Israel’s chief ally, the United States, has already filed a protest, arguing that Palestine is not a state. The United States is not a party to the court—having signed but never ratified the Rome Statute—but could do much to undermine it, including by supporting disaffected African states that have threatened to abandon the court altogether. The ICC is a weak institution; prosecuting Israel could prove fatal.

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[N]ot pursuing a case could also imperil the court. The Hague is already under intense criticism for exclusively prosecuting African cases, which is why many of those states are considering withdrawing. Much of the world considers Israel’s actions in the 2014 war in Gaza and its occupation of the West Bank as a gross violation of international law. If the court were seen to be avoiding a legitimate case against Israel, this limping institution could become irrelevant.

Israelis 

 Whatever the danger to the ICC, the possible trouble for Israel—the prosecution of its forces in Palestine—is even more obvious. The ICC could reason that Palestine never had the power to bargain away its obligation to prosecute international crimes during the Oslo negotiations. And the court could assert that its jurisdiction reaches deep into the Israeli state: Israel considers Jerusalem sovereign territory, but many countries consider it occupied. And if the ICC brought charges against an Israeli soldier or politician, he would have to plan his vacations carefully: 122 other countries, including most of Europe, are parties to the Rome Statute, obligating them to hand over anyone the court indicts.

Difficult to see how this ends well.