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