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Cutting Through the Hysteria Over Court’s Gaza War Probe

As the sun sets, Palestinians walk through the ruins of northern Gaza. AP/Adel Hana

On New Year’s Eve, while the rest of us were sipping champagne and blowing party horns, Palestinian President Mahmoud Abbas was filing a much-anticipated legal declaration with the International Criminal Court at The Hague in the Netherlands. Pursuant to Article 12, Paragraph 3 of the “Rome Statute” — the international treaty that governs the ICC — the declaration affirmed that the “Government of the State of Palestine” recognized the court’s jurisdiction to investigate war crimes committed since June 13, 2014, in Gaza and the West Bank.

Since then, speculation about how far the court may go in heed of Abbas’ filing has raged at a fever pitch. Unfortunately, fulminations and fantasies fueled by fear and loathing have largely dominated the discussion. Facts and informed analysis have taken a back seat to cheerleading, as they have so often in the festering blood feud between Israel and Palestine.

Government officials and pundits in Israel and the United States set an early hysterical tone for the dialogue, condemning Abbas for exercising what they termed a “nuclear option” that will obliterate any lingering hopes for a negotiated peace. The Israeli government — led by right-wing Prime Minister Benjamin Netanyahu and ultra-nationalist Foreign Minister Avigdor Lieberman — has frozen $127 million in tax revenues that it collects on behalf of the Palestinian Authority, depriving the PA of two-thirds of its January budget. Israel has also begun to lobby allies like Australia, Canada and Germany to stop funding the ICC.

Pro-Palestinian commentators, by contrast, have defended Abbas’ move not as a “nuclear option” but as “the only option left for Palestine” to secure its rights in the face of continuing Israeli aggression. Going several steps further, however, was a recent Truthdig column written by University of Michigan professor Juan Cole, one of this country’s foremost authorities on the Middle East. In it, Cole conjured visions of Netanyahu being indicted, captured and imprisoned by the ICC. Cole also cautioned that the possibility of landing Netanyahu in the dock was “unlikely,” but the arrest was presented as a credible near-term possibility.

In an effort to get beyond the fulminations and fantasies — and at the risk of displeasing (“pissing off” might be a more apt term) all parties to the gut-wrenching debate — here is a four-point summary of what actually has happened since New Year’s Eve at the ICC and what the immediate future promises:

1. The ICC is not yet investigating Israel for war crimes.

Following the filing of Abbas’ declaration on Dec. 31, Palestine deposited its “instrument of accession” to the Rome Statute on Jan. 2 with the U.N. secretary-general. The accession becomes final on April 1, when Palestine will officially become the court’s 123rd member state. Neither Israel nor the United States is a member of the ICC.

On Jan.16, prompted by the accession instrument and Abbas’ declaration, the ICC’s chief prosecutor — Fatou Bensouda, a former attorney general and justice minister of the Republic of The Gambia — announced that her office would open a “preliminary examination into the situation in Palestine.”

Bensouda is no hack. The wording of her press release was chosen carefully.

“A preliminary examination is not an investigation,” the release explained, “but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation. …”

The release also explained that there are “no timelines in the Rome Statute for a decision on a preliminary examination.” It also suggested, as Bensouda has intimated before, that the court’s jurisdiction could reach back to Nov. 29, 2012, the date that the U.N. General Assembly adopted Resolution 67/19, granting Palestine “non-member observer State” status in the world body.

As the ICC’s website says, cases come before the tribunal via three primary channels: “Any State Party to the Rome Statute can request the Prosecutor to carry out an investigation. A State not party to the Statute can also accept the jurisdiction of the ICC with respect to crimes committed in its territory or by one of its nationals, and request the Prosecutor to carry out an investigation. The United Nations Security Council may also refer a situation to the Court.”

And in conducting a preliminary examination or investigation, the ICC prosecutor can consider and weigh information not only supplied by states, but also complaints (called “communications” under the Rome Statute) filed by nongovernmental organizations, such as human rights groups like Amnesty International. As of the end of 2013, the ICC had received a total of 10,470 such communications on a wide array of subjects. Most undoubtedly were read and considered and promptly filed away. But others seem to have played an important role in the court’s deliberations.

Apart from Palestine, Bensouda’s office currently is conducting eight preliminary examinations, including inquiries pertaining to Afghanistan, Iraq, Ukraine and Georgia. That the Georgia matter has been pending since 2008 is an indication of the duration of such probes.

If Bensouda concludes that further prosecution is warranted after completing the Palestine preliminary examination, she will apply to a panel of ICC judges for permission to initiate a formal investigation. The ICC has 18 judges, headed by South Korean jurist Sang-Hyun Song.

2. The Palestine preliminary examination and any ensuing investigation will consider war crimes committed by individuals on both sides of the conflict.

Contrary to the belief of partisans in both camps but particularly those on the Palestinian side, Bensouda’s probe will extend to possible war crimes committed by both Israelis and Palestinians.

The ICC prosecutes individuals, not states. Nonetheless, states requesting ICC investigations are required to cooperate fully with any probes of their citizens.

Late last year, Bensouda dropped a prosecution against the president of Kenya due to noncooperation by the Kenyan government. Kenyan President Uhuru Kenyatta had been accused of committing crimes against humanity by orchestrating the assassination of over a thousand of his fellow citizens after disputed elections in 2007.

Kenya, like Palestine as of April 1, is a member of the ICC. And like Kenya, Palestine will be expected to surrender any of its citizens who are accused of war crimes. If it fails to do so, the ICC’s Palestine inquiry probably will cease. Israel, being a nonmember, is under no similar legal duty to turn over any of its nationals to the court, although any indicted Israelis would be subject to arrest should they travel to any member state inclined to act on ICC warrants.

At present, the ICC is conducting eight formal investigations, all involving nationals of African countries. In its history, the court has completed fewer than four trials.

3. Even if they are of lesser magnitude, Palestinian war crimes may be easier to prosecute than those committed by Israelis.

In a Jan. 15, 2015, Op-Ed article published in the Los Angeles Times, Human Rights Watch Executive Director Kenneth Roth — a longtime proponent of ICC intervention — wrote that the crimes committed by Hamas during last summer’s war “are factually and legally among the easiest to prove” of all the allegations before the ICC.

The reason for this — which Roth did not address in the Op-Edappears to be that proof of war crimes and other serious breaches of international law that fall within the ICC’s mandate requires evidence of specific intent and knowledge on the part of the perpetrators. Intent is often the most difficult element of proof in a criminal trial.

Even though Israel will have no formal standing to participate directly in Bensouda’s probe, unless it decides to accept the ICC’s jurisdiction on an ad hoc basis, its interests will be represented by Shurat HaDin, a combination law center and NGO based in Tel Aviv. With a branch office in New York and an annual budget of $2.5 million, the group has earned a reputation as an exceptionally zealous defender of Zionist causes in courts not only in Israel and Europe but the U.S. as well. As the organization’s website proclaims, “The war against Israel is not limited to the battlefield.”

Since last September, Shurat HaDin has filed several ICC communications against key Palestinian leaders, including Hamas kingpin Khaled Mashal and President Abbas. Both are Jordanian citizens subject to ICC jurisdiction as a result of Jordan’s membership in the court. Both stand accused of war crimes.

Mashal, according to Shurat HaDin, is guilty of intentionally directing and approving the summary execution of 29 suspected collaborators in Gaza last August and murdering an additional 20 Gazan civilians for participating in anti-war protests directed against the Hamas leadership in July.

Abbas stands accused in his capacity as central committee chairman of the militant faction Fatah of actively promoting indiscriminate rocket attacks on Israeli civilian populations. An additional set of Shurat HaDin communications lodged earlier this month cites three other Palestinian officials for assorted acts of terrorism, torture and civil rights violations.

No doubt the Palestinians and their supporters will lodge communications of their own, but the Israelis have still another arrow in their legal quiver that the Palestinians do not: the principle of “complementarity.”

As set forth in the preamble to the Rome Statute, the ICC is designed to operate as a court of last resort. As such, it prosecutes cases only when states are unwilling to investigate their own citizens accused of crimes that would otherwise fall within the court’s purview.

Israel, at least arguably, has a complementary justice system within the meaning of the Rome Statute. Palestine, and more particularly Hamas, arguably does not. To date, the Israeli army has initiated 13 investigations of alleged misconduct committed during last summer’s war and has promised to review dozens of additional cases. Whether the Israeli investigations prove ultimately to be a sham, they will serve as another roadblock Bensouda will have to navigate.

4. Support for the ICC requires support for a bilateral probe.

Behind all the bellicose rhetoric spewing from both sides there is a very disturbing reality: The International Criminal Court is a fledgling and fragile institution. Its mission is to do justice in a world governed by craven political interests and the exercise of raw power.

As applied to the Israeli-Palestinian conflict, the mission may not be impossible, but it is one fraught with grave obstacles. The most critical of these are the Israeli-American demand that the court halt its war-crimes probe altogether and the Palestinian demand that only Israeli transgressions be scrutinized. Both demands have the potential to derail the probe, and in the process undermine the court’s legitimacy and consign it to irrelevance for generations.

The best way for human rights advocates to show their support for the ICC is by demanding that the court’s Palestine inquiry be fair, impartial and, above all, bilateral. This isn’t just the right and just way to move forward. In truth, it’s the only way.

Bill Blum
Contributor
Bill Blum is a former judge and death penalty defense attorney. He is the author of three legal thrillers published by Penguin/Putnam ("Prejudicial Error," "The Last Appeal" and "The Face of Justice") and is a…
Bill Blum

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