The Tone-Deaf ICC Prosecutor

by Kevin Jon Heller

Moreno-Ocampo has always had the reputation of being more politically savvy than legally savvy.  Frankly, he seems completely politically tone-deaf to me.  Witness his recent comments on the implications of a possible UN General Assembly decision to give Palestine “observer state” status:

A few blocks away from the UN this week, the man at the centre of the controversy said if Palestine becomes a member state, or a lower-ranked non-member observer state, it could be eligible to pursue claims against Israel.

“If the General Assembly says they are an observer state, in accordance with the all-state formula, this should allow them . . . to be part of the International Criminal Court,” he told the Star.

Moreno-Ocampo has scrutinized the issue of the Palestinians’ claims for two years, since they filed a declaration giving jurisdiction to the court for acts committed on their territory. But there has not yet been a conclusion.

“We have the declaration, and we have been analyzing if they are a state,” he said. “Now the issue is before the UN, and whatever they decide, we will react to.”

Israel’s former UN ambassador Dore Gold told the BBC that Palestinian President Mahmoud Abbas made the bid for statehood “to open a whole new door of going to the International Criminal Court.”

Israel opposes any move to hold it accountable in the court, saying it is a Palestinian attempt to delegitimize and isolate the Jewish state.

Moreno-Ocampo’s opinion that the court would be able to act if the Palestinians get observer-state status is significant because the bid for full UN membership is expected to fall short, which would leave them to ask the General Assembly to vote on including them as an observer state instead.

I am completely in favor of the General Assembly granting the Palestinians observer-state status, and there is no question that such a decision would strengthen the legal case for the OTP recognizing the Palestinians’ declaration accepting the ICC’s jurisdiction.  But I cannot imagine why Moreno-Ocampo chose to offer his opinion on that issue now — just as debate over the Palestinian’s request for full membership in the UN is getting underway.  After all, Israel and the U.S. have made clear that fear of an ICC investigation of the situation in Gaza is one of the primary reasons they oppose observer-state status, much less full membership, for the Palestinians.  Neither Israel nor the U.S. has the ability to block a General Assembly decision to that effect.  But they can certainly make that decision more difficult and costly for various states.  So wouldn’t it have made more sense for Moreno-Ocampo to say nothing until after the General Assembly resolved the Palestinian issue?  By tipping his hand so overtly, all he’s done is make the Palestinians’ road to self-determination that much more difficult.

June 2012 cannot come soon enough.

http://opiniojuris.org/2011/09/29/the-tone-deaf-icc-prosecutor/

16 Responses

  1. I agree that the timing and nature of Moreno-Ocampo’s comments are highly political and probably make it even harder for Palestine. But what I find just as remarkable is that, as far as I understand, the OTP has just sat on the Palestine file for two years. Two years! I understand that there may be a politically pragmatic motive to stay silent. But surely a preliminary decision shouldn’t take that long or at least a decision which outlines what would be necessary to accept jurisdiction in Palestine would be possible. Also, surely two years of active is sufficient time to say “justice delayed is justice denied.”

  2. I wonder if Ocampo is overstating the importance of the General Assembly’s determination.  Isn’t the key question whether Palestine was a state when it filed its declaration under Article 12(3) of the ICC Statute in January 2009? If Palestine was not a state, then its declaration was invalid and the ICC would not have jurisdiction over any crimes committed on Palestinian territory.  

    Moreover, if Palestine joins the ICC after it becomes a UN observer state, the ICC would only have jurisdiction over crimes committed after the statute’s entry in force for Palestine pursuant to Article 11(2).  The Court could only have jurisdiction over crimes committed prior to this point if Palestine’s January 2009 declaration was valid.  I suppose that Palestine could seek to make another declaration upon ascension, but it is unclear to me that ICC member states can avail themselves of Article 12(3).

    In any event, I don’t think that the ICC is off the hook from having to decide whether Palestine was a state when it lodged its declaration with the Court.  

  3. I cannot imagine that this sword would not have two edges.  If Palestine were to be held to the norms of a state, Israel would have grounds to sue for enforcement against rocket and terrorist attacks originating there.  Surely an impartial United Nations would want that to happen.

  4. Of course the admission of “Palestine” will have unseen affects.  They are thinking that they’ll now be able to act like a state and take Israel to the ICC.  Surely a state that allows rocket launches against it’s neighbor opens itself to condemnation for acts of war…?  No?  I’m betting that rockets cause some response.

  5. Response… So a rocket attack by the elected government of one state on a civilian population of another state would be punishable by the ICC? Is Hamas worried?

  6. Will the ICC be taking up the little matter of Gilad Shalit’s imprisonment? Do you even know who that is, Mr. Heller?

  7. And of course the next rocket attack will be an act-of-war rather than an attack by a stateless rogue entity. Sauce for the goose…..

  8. 13th,

    I realize your comment is designed to insult me, not offer an actual idea or argument, but the ICC could indeed investigate Gilad Shalit’s kidnapping if the new Palestinian state accepted the ICC’s jurisdiction prior to June 2006.

    Perhaps you might learn something about how the ICC works before you offer more embarrassing “gotcha” comments in the future.

  9. Admit the splodeydopes to the UN?  What an idiotic idea.

  10. Re 13th and your response—
    No, if Hamas continues to hold Gilad Shalit hostage on and after the day the ICC recognizes Palestine, it’s an issue regardless of when they kidnapped him.

    Of course, Hamas will just follow Stalin’s dictum, “No man, no problem” and kill him the day before.

    I also note your double-snark response to 13th’s snark and wonder what nerve he hit.

  11. Response…If the Palestinians are granted observer status, shouldn’t the Kurds be granted the same status. They have a far more legitimate claim to nationhood than the Palestinians.

  12. If Palestine becomes a state, does that mean anything nasty they do will be “state terrorism”?
    For that matter, does that mean the Israeli settlers will be illegal aliens and thus must be defended by us “liberal airheads”? (According to the F-scale, I am a liberal airhead. Everybody else calls me a reactionary crackpot.)

  13. cubanbob asks: “If the Palestinians are granted observer status, shouldn’t the Kurds be granted the same status?”

    No. The Kurds are fighting Turks and Iraqis and Persians. The UN considers them to be human beings.

    The UN considers Palestinians to be fighting Jews. And just like the League of Nations, the UN considers Jews not to be human; the UN considers Jews simply as vermin to be destroyed.

  14. Cubanbob: Kurds are residents and citizens of Turkey, Iran, and Iraq. They are a disgruntled ethnic minority in each of those states, but legally they have the same rights as other citizens. Their claim to national status has no legal basis – the same as Basques, Lapps, or native Hawaiians.

    Palestinian Arabs are not citizens of any sovereign state; nor is the land they live on part of a sovereign state.

    This is a legal anomaly. There are two possible cures: Palestinians and their land could be added to existing state; or they and the land could be formed into a new state.

    Since no other country wants them or that land, including Israel, the choice is obvious: a Palestinian state. Which is not to say that this cure should be applied at once, or even in the foreseeable future.

    The Palestinian people (as a collective group) behave like a mad dog – when not restrained, they bite. Any grant of sovereignty would enable this behavior.

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