Israel, Palestine and the International Criminal Court
The alleged crimes that have been committed by Israel and Palestinians should be referred to the International Criminal Court. That is the best option open for finding out the truth of what has happened.
By Julian Ensbey on Monday, January 19th, 2009 - 1,403 words.
This website has several recent articles discussing alleged breaches of international criminal and humanitarian law in the Israel-Palestine conflict. Among others, Noam Chomsky has pointed to crimes committed by Israelis, Matt Kennard has discussed attacks against civilians and Enbal Gross has argued that genocide is occurring. Omri Preiss has defended the Israeli position. Although not the subject of extended analysis on this website, it is not difficult to find accusations that Palestinians have also committed serious crimes.
I don’t propose to engage with these issues substantively. Rather, I want to analyze one way that the international community could deal with the claims. It will suffice to say that it is at least arguable that serious crimes have been committed. There are credible reports of deliberate or indiscriminate attacks on civilians by both Israelis and Palestinians. These reports do not prove that crimes have been committed, but they do demand investigation. One way to do this is have the Security Council grant the International Criminal Court (ICC) jurisdiction over Israel and the occupied Palestinian territories with respect to the most recent violence in the occupied territories.
The ICC was established in 2002 as a permanent court to adjudicate charges of serious international crimes against individuals or groups. The Court’s creation was inspired by the success of the International Criminal Tribunals for Yugoslavia and Rwanda. It was seen as desirable to have a permanent body available, albeit one hoped to be underemployed.
The jurisdiction of the Court is limited by both subject matter and territory. It may only consider specific crimes: genocide, war crimes and crimes against humanity. The alleged atrocities in Israel-Palestine arguably fall within these categories. The Court may only investigate crimes that either have a direct territorial nexus to a State that has signed the ICC treaty, or relate to a situation that the UN Security Council has asked the Court to investigate. Neither Israel nor Palestine is a party to the ICC Statute. The Court could only exercise jurisdiction following a referral by the Security Council.
Two points will be considered in this article: whether it would be desirable for the ICC to be given a referral; and whether it is politically plausible for this to occur.
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The potential benefits of a referral of the Israel-Palestine conflict to the ICC are straightforward. A reference would allow for an expert determination of the merits of the claims of atrocities. If the allegations have merit, the perpetrators can be identified and punished. If the claims have been exaggerated, falsified or mistaken, the evidence will be aired and found deficient.
These are desirable outcomes. To allow the worst crimes to go unchecked diminishes the humanity of all of us. Unpunished crimes stoke the fires of conflict and make a lasting peace in the Middle East less likely. False claims left unrefuted can be just as harmful.
A public investigation by the ICC might create a credible deterrent against future atrocities. Individuals are less likely to act with impunity if they have a founded fear that they may be brought to account for their actions.
The ICC has the advantage of having no affiliation with either side in the conflict. This matters. A purely domestic body would inevitably be regarded as partisan and any findings assumed to be tainted. The ICC might be seen as geopolitically skewed to extent that its structure is directly inspired by the European and English legal systems, but there have been no serious accusations of substantive bias against it to date.
A potential stumbling block is the rule of “complementarity”. The ICC can only act if other judicial bodies with jurisdiction are unwilling or unable to properly investigate. In the Sudan the government is reported to be trying to activate this rule by setting up a hybrid international tribunal. A similar strategy might be employed in Israel-Palestine. It would not necessarily be a bad thing if the end result of a referral to the ICC was to facilitate a genuine investigation by an alternate body. If such a body failed to investigate thoroughly the ICC could resume its inquiries.
Admittedly, the ICC does not enjoy universal support. Among others, the present US administration has a number of objections. There are flaws in the treaty. Most of these have no relevance where there has been a specific grant of jurisdiction by the Security Council. The US does not appear to have an objection to this approach. It acquiesced in the grant of jurisdiction by the Security Council to the ICC in Darfur.
There is one argument against the ICC that has traction. The Court has been accused of indirectly undermining peace negotiations. Where a leading figure in a conflict — such as Joseph Kony in Uganda or Omar Al-Bashir in Sudan — is indicted, peace may become a less attractive option to that individual and his or her supporters. It is foreseeable that ICC indictments might be issued against senior Israeli or Palestinian officials. It is not clear how Israel or Palestine would react. It is arguable that putting an end to serious criminal acts is more important than appeasing those who have consistently failed to move towards peace. This trade off is the most serious consideration in whether the ICC should be deployed.
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Politically, a grant of jurisdiction to the ICC is not as naive as it might initially seem. A sub-national Israeli authority has already called for it to occur. Iran and Yemen have made similar requests, ostensibly on behalf of the Palestinian people.
If the proposal came up for discussion, the national government of Israel would struggle to find an intellectually defensible objection to the ICC conducting investigations. African countries sometimes object to the Court as a manifestation of colonialism. Israel can hardly mount this argument. The post-Holocaust movement that led to the creation of Israel also gave birth to international criminal law. Israel’s usual argument against the ICC, that the crime of population transfers in occupied territories should not have been included in the Statute, has limited relevance if the referral related only to the most recent military incursion into the occupied territories.
In any event, the consent of the Israelis or Palestinians is not necessary for the Security Council to act, although it would smooth the process. Even if one or both objected, support in the broader international community could, perhaps, be found. The appalling character of the alleged crimes should prompt action. It seems more likely than not that the US would veto a referral if requested to so by Israel, but there is some hope that the proposal might be considered on its merits.
The recent Security Council Resolution 1860 can be seen as evidencing a willingness in the international community to do (or to be seen to do) something about the conflict. It is significant that the strongly worded resolution was not vetoed by the US. It may signal a willingness to permit further steps. Diplomacy has produced little result. A military intervention is implausible. Sanctions, as I have argued elsewhere, are likely to be counterproductive. In that context, the ICC offers a politically palatable option for concerned States. International criminal tribunals have been a popular option recently — they have commenced work in, among other places, Sierra Leone, East Timor, Kosovo and Cambodia.
The political attractiveness of a referral to the ICC is, regrettably, strengthened by the fact that a referral is a limited step. International criminal and humanitarian law only regulates the manner in which hostilities are conducted, not the decision to engage in them in the first place. The fact that it is not a complete solution does not diminish the work of the Court. Ensuring that the international minimum standard of conduct is adhered to would be a tremendous first step. It is the least that should be done.
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Yes, it would be nice if these matters could come before the ICC. But if Julian's reasoning about sanctions on Israel not having an effect applies, why wouldn't it apply here too? Remember the ICJ declared Israel's annexation wall completely illegal, and how has that changed Israel's behaviour? It hasn't. My point is not that I disagree with Julian, but that going by his own reasoning – will it change Israel's behaviour? – on sanctions, it's not clear why he should think this is a good idea. Of course, I think it could have an effect if all sorts of other things were to take place. Just as sanctions/boycott won't work in isolation, nor will an ICC judgement. None of these things will work so long as the US keeps supporting Israel in its crimes. But they can create an atmosphere that makes it harder for the US to keep doing so.
Thanks for comment Chandra, its an interesting point. Sanctions and an ICC referral have a common problem in that they may antagonise parties. Aside from that, I think they're different.
First, and most importantly, sanctions apply generally to a country, the ICC specifically targets individuals. Sanctions can create problems because those in charge can pass on the consequences to the population – protecting their own funds by cutting (say) education spending. An ICC warrant is issued in the name of a particular person. It imposes individual, rather than collective liability. Individuals tend to act differently if it is their own head on the line.
Second, sanctions as I discussed only applied to one side to the conflict, not both. The ICC would investigae both sides. This may lessen the sense of being "bullied".
You mentioned the ICJ – I imagine you mean The Wall Advisory Opinion. It is worth remembering that this was specifically an advisory opinion – technically it didn't purport to tell Israel what to do. Israel didn't participate in the hearing. This made it relatively easy for it to be ignored. By contrast, Israel has been a long term and very public supporter of international criminal justice. Politically, it would be much harder for it find a defensible explanation as to why it should be ignored. Practically, The Wall opinion didn't have any consequences for Israel if it ignored it. Even if Israel ignored the ICC, it would mean that an indicted individual (if someone was charged) could no longer travel freely.
Julian, good points about the differences between the ICC and sanctions. Again, I agree that there should be an ICC referral. I still think it wouldn't have much effect on Israel's behaviour in isolation from broader pressures, even if some individual war criminals couldn't travel freely.
It's true that sanctions would impose a kind of collective liablity, but is there not a kind of collective responsibility here? The majority of Israeli citizens can hardly claim innocence in supporting this war against Gaza in particular, and the harsh (and illegal) policies towards Palestinians in general, over many years. Not to mention the support for a state that systematically treats it's minority Palestinian citizens as second or third class, to the point where they even banned two Arab parties in the coming elections.
It's true that an ICC ruling, applying to both sides, would lessen the sense that Israel is being bullied – lessen, not eliminate. But the point of sanctions and boycott is precisely to isolate Israel. You can call that bullying if you want, but if it was justified to isolate the apartheid regime, I don't see why it's not justified to isolate Israel. One might even argue, as some (such as Bishop Tutu) have, that Israel's treatment of the Palestinians in the Occupied Territories is worse than apartheid was for people in the Bantustans. (Tutu is another one who supports sanctions/boycott, by the way).
Ideally, sanctions/boycott would be applied to the US since the US makes it possible for Israel to do what it does in the Occupied Territories. But that's not feasible. The US economy is too big. It is feasible in the case of Israel, however. Sanctions, boycott, an ICC referral, and many other actions should be taken. This should be a battle on many fronts.