16 Jan ICC Silliness Watch — Non-Media Edition
ICC silliness doesn’t just affect the media. States and NGOs suffer the malady, as well. Case in point: the recent, repeated calls for the ICC to prosecute Israel for war crimes allegedly committed in Gaza.
First up, Bolivia: “The Andean state says it is intended to make regional allies take a unified stance against “the Israeli political and military leaders responsible for the offensive on the Gaza Strip” and make it to stand trial at the international body in the Hague, said Sacha Llorenti, whose portfolio covers civil society. Moves to begin the legal process will begin “probably next week,” Bolivia’s deputy justice and human rights minister Wilfredo Chavez told journalists during the visit to Geneva, AFP reported on Friday.”
Next up, the Asian Parliamentary Association: “The Asian Parliamentary Association (APA) will haul Israel to the International Criminal Court (ICC) for war crimes, said APA president Agung Laksono on Thursday. He said the move was in line with the resolution at an emergency meeting of the Parliamentary Union of the Organisation of the Islamic Conference (PUIC) member states in Istanbul, Turkey on wednesday. ‘Speakers of Asian parliaments will bring the guilty to the ICC as war criminals’, said Agung, Speaker of the Indonesia parliament, as reported by Antara, the Indonesian news agency.”
There is, of course, one small problem with this idea: even if Israel has committed war crimes in Gaza — and I certainly believe it has — the ICC does not have jurisdiction over them. As Moreno-Ocampo quickly pointed out, Israel is not a party to the Rome Statute. To be sure, Israel could accept the ICC’s jurisdiction ad hoc or the Security Council could refer the situation in Gaza to the Court (as suggested by the International Federation for Human Rights). But we all know how likely those scenarios are.
Seriously, guys, read the Rome Statute. You can find it on-line here.
I don’t understand why it is silly for governments to call for the ICC to prosecute Israel for war crimes? It is true that it is not likely that Israel would accept ICC’s jurisdiction ad hoc, nor that the Security Council would refer. But that does not make it silly to call for it. As far as I know one source of international customary law is custom is what most of the states do most of the time, asserting that they act in conformity with the international law. In lots of cases it is impossible to act in a certain way to create those norms. For instance how does a state act when want to create a rule of international law that prohibits torture? In the Gaza case, how would the states act to create an international norm in which states are prosecuted at ICC much easier than it is now the case? At the same time, if states don’t protest against certain practices, they agree with those practices, thus creating new norms of intnational law, making these practices legal. Therefore by asserting that ICC should prosecute Israel, states do two things: (1) They protest against certain practices, thus they… Read more »
Political pressure is one key aspect of international relations, but the calls are indeed silly from the perspective of international law: 1) More importantly than the issue of territorial jurisdiction, it should be pointed out that the ICC does not prosecute States! it prosecutes individuals. Given the fact that a lot of israelis have dual nationality, in light of Israel’s immigration policy, it is theoretically conceivable that a israeli soldier could have the nationality of a State party and thus in principle could be prosecuted. Unlikely to happen, but possible. 2) The comment about customary law is beside the point, as it confuses subtantial law and jurisdiction. There is no doubt that a considerable chunk of IHL is customary law. That is already a given. The call for prosecution is a different issue. If all these States initiate prosecutions in their national legal system, then we fall within the debate of Universal jurisdiction for international crimes and its customary nature. Hitly debated and argued, but not really settled in the case law, imho. However, the ICC is different. It is a Treaty body and all the calls in the world cannot “add” through customary law a jurisdictional trigger mechanism in the Statute of the… Read more »
But Gaza isn’t a state, and its not part of Israel … I have more, let’s call it faith, that the ICC could come up with some creative interpretation resulting from Gaza’s unique status in IL.
NSD,
I realize that US conservatives have constructed an elaborate mythology about the ICC, but I think your faith is misplaced. The last thing the Court would ever do is risk the political consequences of finding some creative basis for jurisdiction.
I don’t care about the ICC’s mythology, courts whether domestic or international have been known to shed their mortal coils of jurisdiction. Why should the ICC be any different?
The ICJ shed its inability to grant provisional measures. The U.S. Supreme Court has able to overlook the whole “process” aspect of substantive due process. The ICTY did not seem too burdened with that whole international armed conflict thing.
And by the way, I thought that you support the ICC on the grounds that it is free of politics, you can’t have it both ways!