Despite Israel’s Win the ICC Remains a Dangerous Institution

The International Criminal Court in The Hague (ICC/CPI), Netherlands. Photo: Vincent van Zeijst.

Israel, like the U.S., is not a member of the International Criminal Court (ICC) for good reason. When the international community was considering creating the world’s first permanent criminal tribunal, detractors warned that ICC would become a vehicle for politicization. Specifically, critics of the idea warned that Israel and the U.S., perhaps the two nation’s that most stringently follow the Laws of Armed Conflict, would become targets of investigations and prosecutions.

That is exactly what happened in the aftermath of Operation Cast Lead in 2008-2009 when Israel invaded the Gaza Strip to stop the relentless rocket attacks against its schools and homes. Gaza, being run by the terrorist group Hamas, is dense and chaotic, and Hamas routinely tries to blend in with civilians to force the kinds of casualties that will lead to international outrage. While Israel’s military went to unprecedented lengths to avoid killing non-combatants, accidents and collateral damage were inevitable.

The Palestinian Authority, sensing an opportunity to put Israel on the defensive and seek international legitimacy, plotted a maneuver to accede to the jurisdiction of the ICC that would lead to an investigation of Israel’s military and potentially result in indictments. Not only would that result fan the flames of anti-Israel sentiment on the international stage, but it would restrict Israeli’s from traveling abroad where they might face arrest and otherwise hamper its ability to act in self-defense.

The case should have been open and shut. Under the terms of the Rome Statute, only the United Nations Security Council or a State can confer jurisdiction on the ICC.  Since the U.N. had not referred the “situation in Palestine” to the ICC and there is currently no Palestinian State, the Court had no basis for jurisdiction. The ICC’s Chief Prosecutor, Luis Moreno-Ocampo publicly admitted as much shortly after the PA’s submission to the Court. Rather than dismiss the application summarily, however, the ICC Prosecutor seized on the opportunity to bolster the Court’s profile and turned potential criminal investigations into an academic exercise.

Israel, being a non-member of the Court, could not respond to Moreno-Ocampo’s invitation to provide a response or information. Instead, a group of international lawyers of which I was a part, extensively briefed the Court on why it did not have jurisdiction. Twice I traveled to The Hague with attorneys to meet with the Prosecutor and explain that by merely entertaining the PA’s declaration it only further undermined the Court’s credibility.

During this time period while its application was before the Prosecutor’s Office, the PA also decided that it would seek full membership in the UN as a State.  The PA calculated that it might further pressure the ICC to acknowledge a Palestinian State and launch criminal investigations.  However, to Mahmoud Abbas’s likely surprise, his UN application, which was billed as historical and transformative, turned into a total flop, failing to garner even the minimum nine votes on the Security Council that would have forced the U.S. to exercise its veto.

The setback forced the ICC’s hand as well. With Moreno-Ocampo term as the ICC’s first Chief Prosecutor expiring in several months, he did not want his legacy tarnished further by leaving the Israeli-Palestinian situation unresolved.  Despite the pressure that he faced by Israel detractors to move forward with the investigation, in the end the legal arguments were simply untenable.  So, instead, his office issued a short opinion that said the Court lacked the power to interpret the existence of a Palestinian State without resolution from “competent organs of the United Nations or eventually the Assembly of States Parties.”  Sadly, that opinion left open the very real possibility that the UN General Assembly, a virulently anti-Israel group could change the ICC’s posture by recognizing a Palestinian State.

That possibility is a reminder why the ICC remains such a dangerous institution that could be susceptible to political manipulation.  However, at least for one day—at long last—the Court made the right call.  Hopefully the Palestinians get the message too.  Even the most sympathetic international actors are having trouble buying their story.

Brett Joshpe is an attorney and author in New York and is principal of Joshpe Law Group LLP. Twice he traveled to The Hague with attorneys who argued that the ICC lacked jurisdiction over Israelis.