Sign up now to receive our regular news briefs.

Despite Israel’s Win the ICC Remains a Dangerous Institution

April 5, 2012 1:45 pm 0 comments

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.

Leave a Reply

Please note: comments may be published in the Algemeiner print edition. Comments written in all caps will be deleted.


Current day month ye@r *

More...

  • Arts and Culture Middle East Larry King Asks Saudi Arabian Fan If Taking Pictures With Jews Is Permitted

    Larry King Asks Saudi Arabian Fan If Taking Pictures With Jews Is Permitted

    Jewish former CNN host Larry King asked a Saudi Arabian fan if taking pictures with Jews is allowed in his country, before agreeing to pose for a photo with the man, The New York Times reported on Wednesday. The world-famous interviewer was leaving the Ritz Carlton hotel in Washington, D.C. with a New York Times reporter when a “dark-skinned man” approached and asked to take a picture with him, according to the publication. Whereupon, King asked the fan where he was from. When the man said Saudi […]

    Read more →
  • Europe Sports Britain’s Lord Sugar Says Synagogues Will Be Empty With Yom Kippur Matchup of Jewish-Supported Soccer Teams

    Britain’s Lord Sugar Says Synagogues Will Be Empty With Yom Kippur Matchup of Jewish-Supported Soccer Teams

    British-Jewish business tycoon Lord Alan Sugar joked on Wednesday that London synagogues will likely be empty during Yom Kippur with congregants fleeing to watch the match-up of two leading English soccer teams known for having hordes of Jewish fans. “Spurs V Arsenal cup game drawn on most important Jewish festival,” Lord Sugar pointed out on Twitter. “Both teams have loads of Jewish fans. Conclusion Synagogues will be empty.” North London rivals Tottenham Hotspur and Arsenal FC will go head-to-head in the Capital One Cup third-round […]

    Read more →
  • Arts and Culture US & Canada Jewish Men Pass Jimmy Kimmel Social Experiment, Rescuing ‘Spongebob’ in Distress (VIDEO)

    Jewish Men Pass Jimmy Kimmel Social Experiment, Rescuing ‘Spongebob’ in Distress (VIDEO)

    Two Jewish men were the only unwitting participants in a social experiment conducted by Jimmy Kimmel, for his popular TV show. As part of a candid-camera-like sketch featured Monday night on Jimmy Kimmel Live, the host devised different street scenes to observe human behavior — in particular, to see how long it would take people walking down California’s bustling Hollywood Boulevard to notice and interact with others in distress. One scene involved a man in a Spongebob Squarepants costume who had “fallen down” on the sidewalk and needed help […]

    Read more →
  • Education US & Canada International Jewish Organization Blasts Israeli-Born Star Natalie Portman for Comments on Holocaust Education

    International Jewish Organization Blasts Israeli-Born Star Natalie Portman for Comments on Holocaust Education

    A major Jewish organization rebuked actress Natalie Portman on Monday for saying in a recent interview that Jews put too much emphasis on teaching about the Holocaust relative to other genocides. The Israeli-born movie star told the U.K.’s Independent that the Jewish community needs to examine how much focus it puts on Holocaust education over other issues. She said she was shocked when she learned that a genocide was taking place in Rwanda while she was in school learning only about the horrors of the […]

    Read more →
  • Arts and Culture Israel Book Draws Parallels Between Holocaust and Palestinian Nakba, Sparks Outrage

    Book Draws Parallels Between Holocaust and Palestinian Nakba, Sparks Outrage

    JNS.org – A new book that draws parallels between the Holocaust and the Palestinian Nakba (the Arabic term for the displacement of Palestinian refugees during Israel’s War of Independence) has sparked outrage ahead of an official book launch, to be hosted by the Van Leer Jerusalem Institute on Sept. 7. The Zionist organization Im Tirtzu wrote a letter to the institute demanding that it cancel an event it planned in honor of the book’s authors, under the title The Holocaust and […]

    Read more →
  • Education US & Canada Natalie Portman Says Holocaust Education Shouldn’t be Used for ‘Fearmongering’

    Natalie Portman Says Holocaust Education Shouldn’t be Used for ‘Fearmongering’

    Famed actress Natalie Portman warned on Friday against the use of Holocaust education to evoke fear and paranoia. In an interview with the U.K. Independent she added that the trauma should make Jews more empathetic to others who have also experienced hatred. “Sometimes it can be subverted to fearmongering and like ‘Another Holocaust is going to happen,’” the Israeli-American star said. “We need to, of course, be aware that hatred exists, antisemitism exists against all sorts of people, not in the same way. I […]

    Read more →
  • Book Reviews Commentary A Righteous Gentile Navigates the Sharkpool of Washington’s Middle East Correspondents (REVIEW)

    A Righteous Gentile Navigates the Sharkpool of Washington’s Middle East Correspondents (REVIEW)

    The Tribalist, by Louis Marano, is ostensibly a work of fiction but at its core a kind of love song by a gentile journalist for the State of Israel, and especially its secular Zionist core. (Because of the relentless attacks by left-wing polemicists on Israel’s allegedly “messianic” fringe, it’s often forgotten that most of Israel’s founders and all its leaders have been secular Zionists.) The author, the product of an Italian-American family in Buffalo, served two tours of duty in […]

    Read more →
  • Food Jewish Identity Rugelach Roundtable: Does Beloved Pastry Need Dairy to Taste Good?

    Rugelach Roundtable: Does Beloved Pastry Need Dairy to Taste Good?

    JNS.org – Rugelach (singular: rugala) are a beloved traditional Jewish pastry, with a quirky history to boot, but they often present a kosher conundrum. Though parve rugelach are often a preferred dessert after a meat meal for those observing kosher laws (which stipulate a waiting period between eating meat and dairy), some of today’s most popular rugelach are known for their dairy fillings. Pastry chef Paula Shoyer—author of the books “The Kosher Baker: Over 160 Dairy-free Recipes from Traditional to Trendy” and […]

    Read more →