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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It’s true that a number of U.N. General Assembly resolutions in the past 30 years have called for an end to “Israeli occupation” and explicitly included “East Jerusalem” within the category of “occupied territory.” In response to a request from the General Assembly, the International Court of Justice (a different institution from the International Criminal Court) offered an “advisory opinion” in 2004, denouncing the Israeli security fence (which it called “the Wall in Palestine”) for running through “occupied territory,” which it identified as everything outside Israel before 1967. But these were not formal determinations after a full trial. Israel declined even to participate in the ICJ proceedings. And these pronouncements were not formally binding.

Which brings up a second difficulty with ICC proceedings on this issue. The ICC is not a mere forum for advocates. It is empowered to sentence convicted offenders to prison. It is not supposed to be doing that for mere technical infractions. The Rome Statute itself says the court’s jurisdiction “shall be limited to the most serious crimes of concern to the international community as a whole.” For such crimes, it makes sense that the statute requires all signatory states to assist in apprehending anyone indicted by the court. If the ICC prosecutor decides to act here, the named Israeli defendants will be subject to immediate arrest in any member state of the EU.

And then there is the ultimate difficulty. A prosecution for wrongful issuance of housing permits will be hard to portray as anything other than ganging up on Israel. No one, of course, has ever before been prosecuted for such an offense in the whole history of international law. That’s not because the issue of “transfer of population” has never before arisen.

A recent paper by Dana Brusca details prominent examples. For decades, since its 1974 military seizure of northern Cyprus, Turkey has encouraged Turkish nationals to resettle there, to beef up the Turkish population of the separatist state it has sponsored on the northern part of the island​—​which is not recognized by the international community. Over the last 30 years, well over a hundred thousand Moroccans were encouraged by their government to move into Western Sahara to bolster Moroccan claims in a post-colonial land dispute, first with neighboring Mauritania, then with a Saharan independence movement. Until it finally accepted the independence of East Timor in 2001, Indonesia tried to strengthen its own claims to this former Portuguese colony by encouraging Indonesian nationals to migrate there. Not only did the U.N. never suggest prosecutions in such cases, it allowed outside “settlers” to participate in referenda on subsequent status, acknowledging their claims to remain.

It is common practice at the United Nations to denounce Israel for “offenses” that pass without comment elsewhere. In 2005, Secretary General Kofi Annan cited the preoccupation of the U.N.’s Human Rights Commission with one country​—​Israel​—​as a principal rationale for reforming that body. In its first two years, the successor institution, the Human Rights Council, then devoted nearly 60 percent of its country-specific resolutions to condemning Israel. It was the council which demanded the Goldstone inquiry into Israeli abuses in Gaza, while turning a blind eye to ferocious tactics employed by the Sri Lankan military, where civilian casualties were at least 20 times greater than in Gaza (an estimated 20,000 in the last stages of the Sri Lankan conflict versus 300-900 civilian casualties in Gaza). After the Obama administration brought the United States back onto the Human Rights Council (which the Bush administration had shunned as hopeless), American diplomats tried to resist this obsessive focus on Israel. But in the past two years, the council has still devoted some 40 percent of its resolutions to denouncing one particular country. (Hint: not Libya​—​which was scheduled to be commended by the council for its human rights improvements as recently as February.)

The ICC was supposed to be different. It was supposed to be an institution that could be trusted to exercise the formidable power of prosecution. Governments were not to have direct say in its actions. What that means is that it is on autopilot. If the prosecutor decides to label Israeli officials as international outlaws, there is no mechanism for overturning the indictment. The U.N. Security Council is only empowered (under the ICC statute) to “defer” prosecutions for a year at a time​—​and even that requires the acquiescence of all five permanent members of the Security Council.

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