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.