Would Moreno-Ocampo Actually Investigate Only an Israeli Officer?

According to Newsweek, the answer may well be yes:

As chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo has so far steered clear of controversial cases. In doing so, he hoped to allay U.S. fears that the ICC would become a politicized tool for settling scores. Which is why it’s so surprising that Moreno-Ocampo is now considering an investigation into whether Reserve Lt. Col. David Benjamin, an officer in the Israeli military, authorized war crimes during the Gaza campaign earlier this year. Israel did not sign the treaty that created the ICC and thus is outside Moreno-Ocampo’s jurisdiction, but thanks to a bit of legal sleight of hand, the prosecutor told NEWSWEEK he believes he has all the authority he needs to launch an inquiry: Benjamin holds dual citizenship in both Israel and South Africa, and the latter has signed the ICC’s charter, bringing Benjamin into the court’s orbit.

The case itself may be hard to substantiate; Benjamin told NEWSWEEK he was out of the country during most of the Gaza operation and had no role in its planning. Still, the dual-citizenship issue could set a dangerous precedent for Israel and the United States, which also rejects ICC jurisdiction. If the court can investigate an Israeli with South African citizenship, why not an American with Mexican citizenship? “The implications for the U.S. are potentially very troubling,” says Michael Newton, an international-law professor at Vanderbilt University. But even more so for the fledgling court, which is still struggling to establish legitimacy.

I don’t see what is so troubling about the idea of prosecuting someone who has dual citizenship in a non-ICC state and an ICC state.  Given that nationality is one of the Court’s primary jurisdictional bases (along with territory), no “sleight of hand” would be involved in the the ICC investigating an American with Mexican citizenship.  (Law aside, it’s revealing that Newsweek‘s hypothetical defendant is described as an “American with Mexican citizenship,” instead of as a “Mexican with American citizenship.”  Only an American journalist could so unselfconsciously presume that American citizenship is at the core of all dual citizens’ identities.)

That said, investigating Lt. Col. Benjamin would be a terrible idea.  It is bad enough that Moreno-Ocampo did not immediately reject the Palestinian Authority’s attempt to accept the jurisdiction of the Court on an ad hoc basis, which directly contradicts the plain language of Article 12(3) of the Rome Statute: “a State which is not a Party to this Statute is required under paragraph 2… may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question” (emphasis added).  That route to jurisdiction would at least result in the OTP investigating the situation in Gaza as a whole, including war crimes and crimes against humanity committed by Hamas.  Article 14 makes very clear that a State cannot refer a specific case for investigation: “[a] State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.”

Article 15, by contrast, contains no such limitation: “[t]he Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.”  In theory, then, Article 15 would allow Moreno-Ocampo to investigate only the crimes allegedly committed by Lt. Col. Benjamin, ignoring the numerous other crimes committed in Gaza by Israel and Hamas.  That is a horrific prospect, one that would confirm the fears of the ICC’s worst critics, who regularly claim — without any actual evidence, at least until now — that the Court is on a vendetta to delegitimize Israel.  The OTP should not be investigating Gaza at all, barring an unlikely referral by the Security Council.  And if such a referral is ever made, the OTP must investigate both Israel and Hamas.  (Like Article 14, Article 13 requires the Security Council to refer situations, not specific cases, to the Court.)

Finally, it is important to recognize that Moreno-Ocampo would not be able to investigate Lt. Col. Benjamin without the approval of the Pre-Trial Chamber.  Regarding investigations proprio motu, Article 15 provides that “[i]f the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation.”  That is a critical limitation on the Prosecutor’s power, because Article 17 allows the PTC to deem a case inadmissible if it concludes that “[t]he case is not of sufficient gravity to justify further action by the Court.”  It is difficult to see how crimes allegedly committed by a Reserve Lt. Colonel who was “out of the country during most of the Gaza operation and had no role in its planning” could be grave enough — relative to all of the other serious crimes committed in Gaza — to warrant ICC prosecution.

I sincerely hope that Newsweek is mischaracterizing Moreno-Ocampo’s statement — and I invite ICC insiders who read this blog to comment on this post or email me privately if that is the case.  Because if Moreno-Ocampo even suggested that investigating Lt. Col. Benjamin would be an appropriate use of his proprio motu authority, the end of his tenure as Prosecutor cannot come soon enough.