15 Sep An Interesting Understanding of the Security Council and the ICC (Updated)
I imagine there will be much gnashing of teeth over the Goldstone Commission’s report — the meme of the day seems to be that because the Commission was on a fact-finding mission, it wasn’t permitted to infer from those facts that war crimes or crimes against humanity were committed — but this attack deserves special mention:
Avi Bell, a professor of Law at Bar Ilan University, took exception to the report, disagreeing with its legal conclusions and pointing out, “They say they are a fact-finding mission. So how are they coming up with all these legal conclusions, especially wrong ones?”
The report is due to be presented to the U.N. Human Rights Council on Sept. 29 and the council will then decide whether to refer it to the Security Council. If it’s referred to the Security Council, that council will decide whether to adopt the recommendations.
According to Bell, if charges are referred to the International Criminal Court, the court will have no jurisdiction, since Israel isn’t a party to the court. “In order for the International Criminal Court to have jurisdiction, the accused has to be a citizen of a state that accepts the court’s jurisdiction,” he said.
To be sure, the likelihood that the Security Council will refer the situation in Gaza to the ICC is precisely zero, because the US would veto any such resolution. But it is shocking that Bell believes that the Security Council doesn’t even have the authority to invoke Chapter VII (as required by Article 13 of the Rome Statute) and refer the situation. Omar al-Bashir will be delighted to learn that. As will Charles Taylor, given that Liberia is not a party to the agreement between the UN and Sierra Leone that created the SCSL. As will all of the defendants convicted by the ICTR, which was created by the Security Council over the opposition of the Rwandan government. (The US, by contrast, will be very surprised, as it supported creating the ICTR and SCSL and has vowed to veto any attempt to defer the ICC’s prosecution of Bashir.)
I have little doubt that the Goldstone Commission’s report will raise many difficult issues of international law. Whether the Security Council has the authority in abstracto to refer the situation in Gaza to the ICC isn’t one of them.
UPDATE: Avi Bell has stated in the comments that the McClatchy reporter who wrote the story above misquoted him. I believe him, and the Jerusalem Post article to which he links suggests as much. Note, though, that Bell is quoted in the article as claiming (in the reporter’s words) that Justice Goldstone “played along” with “the original intention of the UN Human Rights Council” to “hurt Israel politically.” That is precisely the kind of ad hominem attack that Bell claims in a later comment is Ken Roth’s primary technique for responding to his critics.
Thanks as always for the learned remarks, generous compliments, and kind demeanor.
As it happens, I told the reporter that there were two other low probability ways for the ICC to take jurisdiction, including the Security Council option. The reporter decided, presumably in the sake of brevity, to take the first sentence of the paragraph answer.
I apologize for treating your outrage so lightly, but I’m sure you’ll find sufficient other items to “shock” you.
Here’s a suggestion: read Irwin Cotler’s delightful rebuttal to Ken Roth’s (of Human Rights Watch) ad hominem attacks on critics of the Goldstone Commission here http://www.jpost.com/servlet/Satellite?pagename=JPost%2FJPArticle%2FShowFull&cid=1251804579273.
I know how you enjoy bristling at any negative mention of Human Rights Watch so I imagine there will be many items here to “shock” you. Vent away.
Best,
Avi
A major oversight, and somewhat embarrassing, however, I’d like to give the Commission the benefit of the doubt that they drew the same conclusion as you did that the U.S. et al. would never allow the situation to be referred to the court.
Avi,
Hmm… I don’t see anything in my post that is particularly nasty; it was shocking to see a respected law professor make a claim that is so patently incorrect. I am happy to accept your claim that you were misquoted — I hope you have demanded that McClatchy print a correction.
I did indeed enjoy Cotler’s “rebuttal.” It was revealing to see how he completely ignored Roth’s claim (which, though critical of Cotler, was not remotely ad hominem) that the Israeli government and its defenders have engaged in a concerted claim to smear Justice Goldstone (undeniably true), focusing only on Roth’s claim that he is an “uncritical” defender of Israel — as if the fact that he isn’t an uncritical defender of Israel somehow means that the smear campaign doesn’t exist.
Kevin,
You state that ” it is shocking to see a respected law professor make a claim that is so patently incorrect.”
I thought Avi just said that he recognized the Security Council had such authority in the abstract, told the reporter as much, but the reporter failed to include that information in his article.
Am I missing something?
Roger Alford
I’d pay good money to see any evidence that all critics of Goldstone have “concerted” with the Israeli government.
As for the rest of it, having been the subject of real smears by Roth and his organization in the past, I’m well aware of the his technique of responding to evidence that he has gotten it wrong by ignoring the evidence and attacking the character of his critics while simultaneously decrying ad hominem attacks. It’s a despicable technique and does not deserve support no matter how laudable Roth’s purported goals.
PS. In answer to David Bernstein’s related question ( http://www.volokh.com/posts/1249097844.shtml ): no, no one from Human Rights Watch has ever apologized to me.
Roger,
I was referring, as I thought was clear, to the shock of seeing the claim in the original story. As I said in the comment, if Avi says he was misquoted, I believe him. I will change the “is” to a “was” to clarify.
As for Avi’s “concerted” criticism — no one, least not Roth, is claiming that the Israeli government and all of its defenders got together in a big room and said “let’s smear Goldstone.” They didn’t need to, because the reaction to anyone who has the temerity to criticize Israel’s military action is always the same: attack the messenger. Cotler attacks Roth for using the word “uncritical”; Avi attacks Roth for using the word “concerted.” Neither address the basic substance of Roth’s argument.
PPS. A more complete summary of my remarks on the Goldstone Commission report and the ICC can be found here: http://www.jpost.com/servlet/Satellite?cid=1251804580185&pagename=JPArticle%2FShowFull.
I’d pay good money to see the evidence that the reaction of all “defenders” of Israel “is always the same: attack the messenger.”
One of Ken Roth’s favorite responses is to accuse his critics of “shooting the messenger.” It’s a striking response because it assumes the truth of his (erroneous) view on the substantive item being disputed and shifts the argument to the character of the critic. It is a perfect example of the technique of ignoring the evidence of the critique and shifting to ad hominem arguments while decrying ad hominism.
Kevin, you can do better.
Avi,
See your own comment to the Jerusalem Post, mentioned above.
I rest my case.