The Magazine

Here Comes the Judge

What happens when ‘Palestine’ has access to the International Criminal Court?

Jun 20, 2011, Vol. 16, No. 38 • By JEREMY RABKIN
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Amidst his other pronouncements on Mideast peace in late May, President Obama warned Palestinians they couldn’t get their state by a show of hands at the United Nations. Soon after, Israeli officials predicted that the Palestinian Authority would pursue its case at the U.N. in September. It’s a safe bet that the Israeli government has a better understanding of Palestinian intentions than the Obama administration.

International Criminal Court

International Criminal Court

It’s true that the U.N. General Assembly doesn’t have the authority to settle border disputes or settle much of anything. Its resolutions are not, in themselves, binding formulations of international law. But a General Assembly resolution on Palestine will open some doors. Perhaps the most important is the door to the Office of the Prosecutor at the International Criminal Court. What happens after that door swings open won’t be a problem just for Israel.

Palestinians tried hard to convince the International Criminal Court (ICC) to indict Israeli military officials after the Gaza intervention last year. But the Rome Statute (as the treaty defining the court’s authority is called) limits its jurisdiction to cases involving “states,” but it does not limit itself to U.N. member states. Even if a U.S. veto on the Security Council keeps “Palestine” out of the U.N., a General Assembly resolution might encourage a substantial majority of the world’s governments to recognize “Palestine.” That would make it rather easy for the ICC prosecutor to treat “Palestine” as a “state.”

Still, it doesn’t follow that the court will be ready to prosecute Israeli military tactics. The court has jurisdiction only where the home state of the offenders is “unwilling or unable genuinely to carry out the investigation and prosecution” of alleged crimes. Even Judge Goldstone​—​of the notorious, eponymous U.N. report on abuses in Gaza​—​has acknowledged that Israeli authorities have been quite conscientious in investigating every allegation of abuse by the Israel Defense Forces. An ICC that intervenes against Israeli military tactics would be an ICC ready to question any army in the world​—​making nonsense of the original claim by ICC boosters that rule-of-law states would not likely be challenged by the Hague prosecutor.

There is, however, a particular provision in the Rome Statute that is​—​literally​—​tailor-made for indictments against Israelis. Article 8, Par. 2b, Clause viii extends the definition of “war crimes” to include “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory that it occupies.” The language was borrowed from the 1949 Geneva Convention on occupied territories, which included a condemnation of mass deportations of the sort conducted by Nazi Germany. The 1977 Additional Protocol I to the Geneva Conventions​—​negotiated as the U.N. was denouncing Zionism “as a form of racism”​—​tweaked the language to cover voluntary movement of civilians (“indirect transfer”), thus reaching Israeli settlement policies. The Rome Statute, negotiated in 1998, then elevated this prohibition to the status of a “war crime.”

Palestinian authorities may not be able to restrain themselves from goading the ICC to assert this jurisdiction. The State of Palestine does not even have to submit itself to the ICC’s jurisdiction over crimes that might be charged to Palestinians. Under Art. 12, Par. 3, a “State which is not a Party” to the ICC treaty “may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question”​—​a route that can be limited to specific crimes, such as “indirect transfer” of population into “occupied territories.” The court has no jurisdiction over “crimes” committed before 2002 (when the Rome Statute took effect), but the prosecutor is required to investigate subsequent offenses, if the initiating “state” so requests.

There would still be serious complications for the court​—​politically, if not legally. One is that the court would have great difficulty deciding such a case without taking responsibility for determining the actual borders of the State of Palestine. Taken literally, the “transfer” provision would cover even the Old City of Jerusalem, where Jews lived for centuries before they were expelled by Jordanian troops in 1948. It would be hard for the court to say Israeli settlement was acceptable in Jerusalem but not elsewhere​—​unless it wanted to declare some settlements in “occupied territory” and others within the lawful territory of Greater Israel. If it’s not going to make itself the ultimate arbiter of boundaries, including block-by-block demarcations in a redivided Jerusalem, the court may have to ratify the maximal claims of the Palestinians.

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