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International Criminal Court News Round Up

By Shawn Macomber ICC2

Here are five can’t-miss reports and opinion pieces for those keeping tabs on the efforts and excesses of the International Criminal Court…

First, citing the botched pursuits of Kenyan President Uhuru Kenyatta and Sudanese President Omar Bashir, Assistant Director of the Atlantic Council’s Africa Center Joshua Meservey presents an excellent breakdown of the Court’s recent African misadventures. And while he endorses the ICC mission in general terms, Meservey is nevertheless is scathing in his summation of its current iteration:

[T]he court’s exercise of its authority to initiate its own case has been self-defeating, exposing its weakness and damaging its standing with many African countries. The international community should either revise the Rome Statute to strip the court of its discretion to open investigations, or the court should no longer exercise it. Only then can it hope to maintain any relevance on a continent that likely needs its services more than any other…

The court is flirting with irrelevance on the African continent, and the benefit of the moral victory of indicting a head of state has been outstripped by the cost. It is time to rethink the tactic.

Of course, the question remains, how open to reform could an institution which allows itself to get caught up in such a “tactic” in the first place truly be?

Northwestern University School of Law professor Eugene Kontorovich explores these inherent flaws at his essential Washington Post legal blog The Volokh Conspiracy, arguing, biased against the Jewish state or not, the International Criminal Court is “a most improper venue for sorting the Israeli-Palestinian conflict”:

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 rofoud 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…

But what of Israeli Prime Minister Netanyahu insistence that “the one who should fear the International Criminal Court at the Hague is the Palestinian Authority, which is in a unity government with Hamas, a declared terrorist organization like ISIS that commits war crimes”? Theoretically, Kontorovich writes, sure. “In practice,” however, “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.

That’s all a moot point, Mohammed Wattad, a visiting assistant professor in the department of political science at University of California, Irvine and ICC devotee, contends in Haaretz because A) the chances that Palestinian leaders — especially those affiliated with non-PA organizations such as Hamas — will be tried before the ICC is nearly zero” and B) Israel, for a host of reasons, is not likely to push for ICC indictments over its own military tribunals:

As for the PA leaders, official Israel has never made any serious argument supporting the accusations that they have been involved in any hostile armed activity against Israel. On the contrary, President Mahmoud Abbas has constantly been calling for a peaceful struggle against the Israeli occupation – publicly condemning, in English and in Arabic, armed attacks against Israelis – and has been working hand with hand with Israel’s security forces in maintaining law and order in the West Bank.

As for the Hamas leaders in the Gaza Strip, they cannot leave, given the Israeli blockade, which also bars international figures from entering Gaza. Other Hamas leaders are being held in Israeli military jails, in most cases serving more than one life sentence. Therefore, their only hope of being released, if at all, would be within the framework of a prisoners’ exchange deal.

In any case, if they had to choose between facing the ICC or Israeli military tribunals, most Palestinians would choose the former, believing that the latter are biased against them. Moreover, unlike Israeli military trials, which are held in camera, ICC trials are publicly screened, thus providing those involved with a golden opportunity to tell their stories to the international community.

Ultimately, I am not sure Israel would like to give Palestinians the latter privilege – all the more so given Israel’s accusation that the ICC is inherently biased against Israelis.

Writing in FrontPage Deborah Weiss is considerably less circumspect, going nuclear over the ICC-Palestine deal in a way that might even make even Alan Dershowitz blanch

[T]he [Palestinian Authority] seeks momentum in the court of public opinion. Its goal on the world stage is to gain international recognition of Palestinian statehood and to delegitimize Israel…

The official date on which Palestine will become a full-fledged ICC member is on April 1, 2015, April Fool’s Day. In a world where anti-Semitism and Islamic jihad are on the rise (both stealth and violent), April Fool’s Day will be a grim day indeed. But the joke is not on Palestine. It will be on all those in the West who profess to care about freedom and human rights, but have abandoned their principles in capitulation to Islamist demands and welcomed terrorists into their midst.

Weiss has competition in the indignation game, however — in a piece entitled “Israel to mount media campaign against International Criminal Court” i24 News documents a fiery Netanyahu promising to match the Palestinians’ “War by other means”:

“The decision by the prosecutor at the International Criminal Court to begin an inquiry against the State of Israel is the height of hypocrisy and the opposite of justice,” Netanyahu said at the start of the cabinet meeting Sunday morning. “I have already encountered such phenomena during my years of public service representing the State of Israel both as ambassador to the UN and as prime minister, but this decision by the prosecutor is in a category of its own. It gives legitimacy to international terrorism.

“We will fight it in every way possible and we will also recruit others to fight this absurdity, and they are already being recruited. We will not allow Israel Defense Forces soldiers to face international tribunals. I would also like to say that these steps will not deter us from doing what is necessary to defend the State of Israel and its citizens,” added Netanyahu.

“The court was founded to prevent a repeat of history’s worst crimes, foremost among them the genocide of 6 million Jews,” Netanyahu said in a statement. “Now the Palestinians are cynically manipulating the ICC to deny the Jewish state the right to defend itself against the very war crimes and the very terror that the court was established to prevent.”

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