Professor George Bisharat Calls (Again) for an ICC Investigation of Israel

by Julian Ku

Apropos of Kevin’s recent posts, Professor George Bisharat of UC Hastings Law School takes to the NYT op-ed pages to call for Palestine to join the ICC and seek investigation of Israel’s actions in the West Bank and Gaza.

The Palestinians’ first attempt to join the I.C.C. was thwarted last April when the court’s chief prosecutor at the time, Luis Moreno-Ocampo, declined the request on the grounds that Palestine was not a state. That ambiguity has since diminished with the United Nations’ conferral of nonmember state status on Palestine in November. Israel’s frantic opposition to the elevation of Palestine’s status at the United Nations was motivated precisely by the fear that it would soon lead to I.C.C. jurisdiction over Palestinian claims of war crimes.

Israeli leaders are unnerved for good reason. The I.C.C. could prosecute major international crimes committed on Palestinian soil anytime after the court’s founding on July 1, 2002.

As our readers know, the retroactivity issue is not quite so easy, although there is certainly ample evidence this could happen. But I have two main reactions:

1) Are we so sure that the UN General Assembly vote to upgrade Palestine to observer state status settled the statehood question for the purposes of the ICC? After all, Palestine had already been recognized by more than 100 countries prior to the recent GA vote, but the ICC rejected jurisdiction in that situation.  What has really changed?  I agree that the GA vote matters, but does it matter enough?

2)  Professor Bisharat also suggests that “Ending Israel’s impunity for its clear violations of legal norms would both promote peace in the Middle East and help uphold the integrity of international law.”  I am doubtful about both of these claims.  Even if Israel is guilty of the violations Bisharat alleges, how does chasing them with ineffectual ICC arrest warrants help the peace process? And how would the integrity of international law be upheld by ICC investigations that will surely be rejected by Israel (and Hamas when they realize what they are facing).

If this is the Palestinian strategy to resolve their dispute with Israel, than the prospects for the settlement of this dispute are even more remote than I had previously believed.

15 Responses

  1. Julian,

    What possible rationale could there still be for denying Palestine the right to ratify the Rome Statute? The only argument I see is that the UNGA vote was not needed in the first place.

  2. The significance of the GA vote derives from the OTP Update on the Situation of Palestine, which decided that “competence for determining the term ‘State’ within the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of General Assembly. The Assembly of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with article 112(2)(g) of the Statute”. Whether the current prosecutor shares this view–and whether the chambers would approve it–has yet to be seen, but it does give potential legal significance to the GA vote.

  3. Julian,
    excellent post.
    But what territory would then actually be within the ICC’s jurisdiction: can the Palestinian Authority really bring a case involving the Gaza Strip which not the PA but Hamas effectively controls?

  4. Further to my previous post, I thought it might also be worth citing a statement of the current prosecutor made back in September, prior to the GA vote: “What we have also done is to leave the door open and to say that if this — if Palestine is able to pass over that (statehood) hurdle, of course, under the General Assembly, then we will revisit what the ICC can do.” The statement is certainly guarded, but it suggests she is willing to consider Moreno-Ocampo’s position regarding the legal significance of a GA vote.

  5. I do not understand why the UNGA is being referred to as a body which determines ‘statehood’ of a state. Because, the UNGA vote determines only whether a state be admitted as a UN member. The concept of statehood and its recognition predates the UNGA.

  6. A few quick points. First, to state the obvious, there is no peace process.
    Second, how can one assume that possible arrest warrants would be ineffectual? Consider for example that an arrest warrant is issued against an individual in the Israeli political elite, who subsequently visits London to attend a football match. The UK authorities become aware of this visitor and thus move to fulfil their obligations by arresting and sending to The Hague. Sure, the probability is that the suspect would remain in Israel rather than risk such travel but that’s the same problem no matter which situation you are considering, in which case the whole concept of ICL is inherently ineffective.
    As for the integrity of international law, well the mere issuance of such arrest warrants might prompt third states to acknowledge the gravity of the violations of human rights ongoing in Palestine and so begin to consider living up to their obligations as states, whether in light of obligations set out by the Geneva Conventions, or as provided for by the ILC’s draft articles on state responsibility, not to recognise or assist the settlement project for example, and to cooperate to bring an end to manifest violations of fundamental norms. 
    Finally, its no problem if you don’t like them, but i’d suggest one not be so patronising to Hamas. As an organisation they are no doubt fully aware of the possible consequences of an investigation into the situation in Palestine by a body such as the ICC. They welcomed the Report of the UN FFM on Gaza, remember, even though their tactics had been described as possible war crimes, and they have generally been generally welcoming of ICC involvement: 
    Perhaps one should consider that members of an armed resistance fighting foreign occupation are willing to stand against and fight against a dominant and superior military power. They are pretty certain that they’re probably going to be killed or imprisoned in that struggle, and that they’re unlikely to win in a military conflict anyway. So, its possible that they would be willing to face criminal charges before an independent international tribunal if they believed they were engaged in a process that might contribute in some manner to changing the dynamics of how the “international community” tolerates the perpetuation and entrenchment of the occupation.
    I’m not saying this will certainly, or even probably, be the case, but while its more than clear, as noted, that Israel will reject any ICC investigation, i don’t see how one can be so sure that Hamas, or any other Palestinian political or armed group would take the same approach.

  7. Daniel the Rome Statute is a binding agreement between the State Parties. The former Prosecutor had an exhibit in hand from the League of Arab States in 2009 which listed treaties in force between the other members and the State of Palestine on a variety of subjects including, extradition for crimes of terror (like those outlined in the Goldstone report) and diplomatic immunity. Those agreements were concluded before the Rome Statute ever entered into force.
    The members of the League have gone to war with Israel in the past over the issue of Palestinian Statehood. Many of them have signed agreements with Israel which established permanent armistice lines of demarcation under the auspices of Chapter VII UN Security Council resolutions. An annex to the League’s Charter states that Palestine’s de jure existence is not a matter that’s open for discussion. The terms of Article 98 of the Rome Statute indicate that the members of the Assembly of State Parties have already agreed to respect the competence of individual member states to conclude binding agreements with “third party states”, like Palestine, without regard to recognition or UN status. 
    It logically follows that the members of the Assembly of State Parties have already agreed that those “third party states” mentioned in Article 98 have the right to file declarations accepting the Court’s jurisdiction in accordance with Article 12(3), unless the undefined term “State” has two entirely different meanings within the same legal instrument. 
    The ILC holds that an individual cannot incur responsibility for the crime of aggression in the absence of aggression committed by a State. Thus, a court cannot determine the question of individual criminal responsibility for the crime without considering as a preliminary matter the question of aggression by a State. In Nicaragua vs United States, the ICJ cited the General Assembly’s Definition of Aggression and held that it is the victim state that has the necessary standing to determine if it has been the target of aggression.
    The members of the Assembly of State Parties adopted an amendment to the Rome Statute that defines acts committed against entities as aggression in accordance with United Nations General Assembly Resolution 3314 (XXIX). The rules annexed to that resolution stipulate that the term “State” can be used to describe any entity without prejudice to questions of recognition or membership in the United Nations. So unless the Judges rule otherwise, the Prosecutor has the necessary competence to use the term “State” to describe any civilian population that has entered into binding agreements, as a State party, with one or more members of the ICC’s Assembly of State Parties.

  8. Re:…how would the integrity of international law be upheld by ICC investigations that will surely be rejected by Israel
    At this point, the “integrity of international law” in the case of occupied Palestine is almost an oxymoron. The ICC wasn’t established to serve as yet another intergovernmental political organ.
    Judge Richard Goldstone said prosecutors should not tailor what they are doing to reports of what’s happening on the ground in negotiations. He said they should indict the responsible individuals if that is where the evidence leads.
    Goldstone related that the political assessment of UN Secretary-General Boutros-Ghali over the timing of the indictment of Radovan Karadzic had been incorrect. Had he not been indicted, the Dayton Accords would not have been brokered. Simon Wiesenthal stressed that if Karadzic were ever indicted he should know that if he didn’t immediately face trial, he would be hunted for the rest of his days. Wiesenthal felt that was the only way to deter other would-be-criminals. Karadzic did manage to avoid arrest and trial for quite a while, but that didn’t render the law ineffective.
    See Richard Goldstone “For Humanity: Reflections of a War Crimes Investigator”, Yale University Press (August 11, 2000), ISBN 9780300082050, pp 93-103

  9. In response to “Hostage”: since when will a war criminal be deterred? On the contrary, you have not mentioned Abu Qatada and Abu Hamza and their living off the fat of the land in the UK while preaching hate and antisemitism and themselves engaging in terror and warcrimes! In fact, most war criminals get off scot free and live in luxury for the rest of their lives, that has certainly been the case with Nazi war criminals.

  10. The integrity of international law is more upheld by a decision of an international court, then by the state violating that decision. For instance when the Dutch parliament members ask the Dutch government about the legality of the settlements on the West Bank, the Dutch government answers that they are illegal and quotes the ICJ, despite being an advisory opinion rejected by Israel. Thus decisions of the courts have influence on the official stance of governments.

  11. In response to Josephine: The fact still remains that Goldstone and  Wiesenthal felt that Prosecutors should fulfill their function by indicting the responsible individuals and stop fretting over political considerations or the notion that some might avoid prosecution.
    It’s a given that war criminals will continue to enjoy relative impunity if no one ever bothers to take any action for fear they might undermine the integrity of international law.

  12. Basil the General Assembly’s powers and functions aren’t limited to decisions on membership. In the Certain Expenses case, the ICJ noted that the members had created an Organization with its own legal personality that could conclude international agreements on its own behalf – and that the members were bound to respect its decisions in that connection.
    The General Assembly concluded international agreements with non-member states, like Italy, concerning trusteeships. It eventually recognized the independence and statehood of every one of the UN trusteeships in the fulfillment of its Charter functions and purposes.
    The ICC has its own international legal personality too. It can enter into special agreements that permit it to exercise its jurisdiction and functions on the territory of any non-member state. I think that implicitly includes the competence to treat other entities as states without regard to questions of recognition or UN membership – and that the Assembly of State parties are bound to respect the decisions of the other organs in that connection in accordance with the terms of the Statute. 

  13. Hostage: you have an interesting legal argument about statehood under the Rome Statute. It is hard to accept, though. Even if States in the Arab League considered their agreements with Palestine to be an agreement with a third State in the sense of Article 98 (I’m not so sure that any of them are on record stating that), that doesn’t make it so. As a purely political body, the General Assembly’s position is also irrelevant. The only reason that the former Prosecutor found the General Assembly’s position to be relevant is because of Article 125.3 of the Statute:”This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations.” The former Prosecutor considered that the conjunction of the two sentences as implying that it is the role of the Secretary-General, as depositor, to determine whether an instrument of accession is acceptable, which entails, among other things, determining that the entity that submitted it was a State. The former Prosecutor then looked to the practice of the Secretary-General, as a treaty depository, in cases of doubt over whether the submitting entity was a State, finding that the Secretary-General would defer to the views of the General Assembly. The former Prosecutor concluded that an instrument of accession would be accepted if the General Assembly considered Palestine to be a State. Up to this point, he was certainly correct. However, the following move–interpreting the term State in Article 12 in light of the practical realities of Article 125–was far more controversial. It remains to be seen if the current prosecutor, not to mention the Chambers, shares the view that the Court need not undertake its own legal analysis of Palestine’s Statehood, rather than relaying on the General Assembly’s conclusions, to determine that the preconditions to jurisdiction in Article 12 have been met.

    Now, regarding your two arguments: if it is controversial that the term “State” in Article 12 should be read in light of Article 125, then it is even more doubtful that the term in Article 12 should be read in light of Article 98. Indeed, Article 12 largely concerns States Parties (or States that are defined by not being a Party), which is the only reason that the procedure by which an entity becomes a State Party might be relevant. Article 98, on the other hand, concerns different matters altogether, and the term there must be read in that context. And even if the Statute did use the term “State” in the same sense throughout, there is no reason to believe that the views of certain States in the Arab League as to whether their agreements with Palestine are agreements with a third State in the sense of Article 98 is determinative for the Court. The Court could, of course, consider that it had to be satisfied that Palestine met the objective criteria of Statehood before agreements with it could fall within the terms of Article 98.

    And as regards your argument about the legal personality of the ICC: of course it has legal personality, but it can only enter into agreements with other international legal persons to the extent that its Statute allows it to–ultra vires agreements are void. Authorization to enter international agreements is impliedly granted in furtherance of the jurisdiction and functions granted to it by its Statute; the Court may not, however, amend its Statute by means of an international agreement.

  14. In response to Mihai, my July 2004 Insight for the American Society of International Law noted as follows:
    “IX. Legal status of advisory opinions

    Under the UN Charter and the ICJ Statute, advisory opinions rendered by the ICJ in principle are non-binding. This non-binding character does not mean that such opinions are without legal effect, because the legal reasoning embodied in them reflects the Court’s authoritative views on important issues of international law. Moreover, in arriving at its opinion the ICJ follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases between sovereign states. An advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations.

    The fact that the ICJ concluded that “the obligations violated by Israel include certain obligations erga omnes” (Para. 155) is particularly noteworthy because it puts the ICJ on record as concluding that Israel has violated an intransgressible right of the Palestinian people to self-determination and certain obligations under international humanitarian law. All other states have a legal interest in protecting such obligations by peaceful means.

    X. Follow-up

    On July 20, 2004, the Tenth Special Emergency Session of the UN General Assembly adopted resolution ES-10/18 in which the Assembly accepted the Advisory Opinion; demanded that Israel and all UN member states comply with the legal obligations spelled out in the Opinion; and requested that the UN Secretary-General set up a register of all damage caused to all the natural or legal persons in connection with Israel’s construction of the wall in the Occupied Palestinian Territory. The General Assembly also reaffirmed the right and duty of all states to take action in accordance with international law to counter deadly acts of violence against the civilian population. The recorded vote in the Assembly was 150 in favor, to 6 against, with 10 abstentions. [22] The Assembly has reserved the right to reconvene to consider further actions in the case of non-compliance, which could include non-binding sanctions.”

    Thus, 150 member states in the UNGA endorsed the legal obligations spelled out in the ICJ’s Opinion, and not the non-binding Opinion itself.  This is significant, for it is those legal obligations and their authoritative source of pronouncement (the ICJ) that count, and not the form of pronouncement (Advisory Opinion or Jugment).  I had suggested to the Dutch diplomats who were involved in drafting UNGA resolution ES-10/18 to refer to the legal obligations identified by the ICJ in its Opinion, as opposed to the Opinion itself, and it was this text that enabled The Netherlands, which held the EU Chair in July 2004, to convince all EU member states to vote in favor of the UNGA resolution, or at least not to vote against it.

  15. Daniel most of the arguments about the meaning of the term “State” in Article 12(3) go in circles and don’t even consult the Convention on the Law of Treaties for an answer. By the time the out-going Prosecutor seized upon the practice of the Secretary General acting as depositary, to consult the practice of the General Assembly in doubtful cases. He ended up using a pamphlet and completely overlooked the fact that no such research is required in cases involving a full member of one of the UN specialized agencies under the applicable law.
    The Vienna Convention on the Law of Treaties itself stipulates that all States have the capacity to conclude treaties (Article 6) and that members of the UN specialized agencies are recognized as part of a special category of States that are invited to become contracting parties to the Convention itself (Articles 81 and 83). 
    So the 113 State parties, including the United States, have accepted a treaty obligation to treat UNESCO members, like Palestine, as States capable of concluding treaties. Neither the Secretary General nor the General Assembly have any discretion to waive that obligation.  
    Article 5 of the Convention on the Law of Treaties says that it applies to any treaty, like the Rome Statute, which is the constituent instrument of an international organization. So without prejudice to any conflicting rules of the organization, that means a state for the purposes of the Vienna Convention is also a State for the purposes of the Rome Statute. The Prosecutor failed to find a conflicting rule in the Statute after years of research. Nothing prevents the Court from treating Palestine as a State, since the Rome Statute is 1) open to accession by all States; 2) the Court can exercise its jurisdiction by special agreement, on the territory of any non-member State (Article 4 and 12); and 3) it is obliged to respect agreements between its members and third party States (98).

    If there is a dispute over a material fact, including statehood, that could effect the outcome of a case, then its a matter the triers of fact should decide.

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