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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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European governments have shown much more tolerance for the U.N. sport of Israel-bashing. The United States walked out of the Durban conference on racism in 2001 because of its obsessive focus on the “racism” perpetrated by Zionists. Both the United States and Canada refused to participate in the 2009 Durban review conference at which Iranian president Mahmoud Ahmadinejad was one of the featured speakers (and proceeded to deliver exactly the tirade against Zionist racism that his hosts must have expected). European governments still agreed to participate in bargaining over the official resolutions of these grotesque gatherings.

European governments seem to have thought the “indirect transfer” provision in the ICC statute was another accommodation to the priorities of the Islamic Conference. They may have supposed the provision was harmless, since Israel’s refusal to ratify the treaty would deprive the court of jurisdiction until an ultimate peace settlement, and the issue would then disappear with the ensuing peace. Now that the Palestinians have chosen a different sequence, that provision looks less like a harmless rhetorical indulgence and more like an improvised explosive device that may go off at any time. The European governments, which thought it worth having the ICC at almost any cost, now have to live with the risks.

It’s worth emphasizing that recognizing a Palestinian state does not, in itself, require European governments to support prosecution of Israeli officials at the ICC. The world is full of territorial disputes​—​think Russia and Japan regarding Sakhalin Island or India and Pakistan regarding Kashmir​—​which continue to be disputed while the parties maintain diplomatic relations with the rest of the world and even with each other. A new State of Palestine would depend on Israel to buy (as it now does) some 80 percent of Palestinian exports and to provide (as it now does) some 80 percent of Palestinian electricity. Israelis and Palestinians will have a lot of other things to talk about while they talk about ultimate borders.

The question is whether Euro-peans support an international prosecutor wading into this tense situation, handing down one-sided indictments for the “crime” of allowing civilians to live in disputed locations. Euro-peans insisted on pushing forward with the ICC, despite strenuous American warnings, even in the 1990s. If the ICC proves its potential for mischief, more than Israelis will be at risk.

The United States, after all, continues to worry about the ICC’s open-ended jurisdiction. Even the Obama administration, while emphasizing its desire to “engage” the ICC, has not expressed any interest in joining the ICC treaty. In the U.N. resolution authorizing the ICC to take jurisdiction over Libya, the United States insisted on language exempting nonparties (like the United States)​—​even while authorizing action against nonparty Libya. Europeans, as full members of the ICC, agreed to entrust their own forces to the prosecutor’s scrutiny. That may help to explain why NATO’s Libya strikes have been so restrained and the conflict so protracted.

If the court goes after Israel, it will be lowering itself to the demagoguery of other U.N. forums, playing to the Al Jazeera audience. If Europeans go along, that is sure to exacerbate strains in NATO. How could we engage in joint military operations with countries committed to satisfying ICC standards​—​when the ICC prosecutor shows himself eager to placate the suspicious, resentful majority in the General Assembly?

The aim of the Palestinian Authority, it seems, is to use the ICC to continue to undermine Israel’s international legitimacy. What may be more at risk is the legitimacy of the ICC itself​—​and ultimately of a NATO alliance, now awkwardly straddling the divide between ICC adherents and ICC skeptics. On this issue, the Obama administration really can’t try to lead from behind.

Jeremy Rabkin teaches public international law and the law of armed conflict at George Mason University Law School.

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