No, Going to the ICC Is Not “Lawfare” by Palestine

No, Going to the ICC Is Not “Lawfare” by Palestine

Just Security has published two long guest posts (here and here) on the ICC and Palestine by Nimrod Karin, a J.S.D. candidate at New York University School of Law who was previously Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations. There is much to respect about the posts, which are careful, substantive, and avoid needless hyperbole. And I agree with Karin on a surprising number of issues, particularly concerning the institutional reasons why (for better or worse) the ICC is likely to avoid opening a formal investigation into the situation in Palestine.

I disagree, though, with Karin’s insistence that Palestine has engaged in “lawfare” by ratifying the Rome Statute and using Art. 12(3) to accept the Court’s jurisdiction retroactive to 13 June 2014 — the day after the kidnapping and murder of the three young Israelis. Here is what he says in his second post (emphasis in original):

To readers who are utterly unsurprised by the dating of the ad hoc declaration I would simply add – likewise. It’s an example illustrating the strategic nature of the Palestinian multilateral maneuvering, which is squarely within their prerogative, acting as any other self-interested political entity would. But then maybe we should dial down the discourse depicting this as an idealistically motivated move – striking a blow for international criminal justice, or placing a conflict under the umbrella of law – and come to terms with the fact that the Palestinians are practicing lawfare by any other name, even at the expense of the values supposedly guiding their march to the ICC.

I wince whenever I see the term “lawfare,” because it is normally just short-hand for “I disagree with X’s legal actions.” Even if the concept has meaning, though, I don’t see how it can be used to describe what Palestine has done. To begin with, as Karin acknowledges, Palestine did not pluck the June 13 date out of thin air — it’s the same date that the Human Rights Committee selected for the beginning of the Schabas Commission’s mandate. Perhaps that was a political decision by the HRC, but Palestine can hardly be faulted for following its lead, especially given that it could have gone much further back in time (its first Art. 12(3) declaration purported to accept jurisdiction from 1 July 2002) — something for which Karin curiously gives Palestine no credit whatsoever.

I also don’t understand what is so troubling about the June 13 date. To be sure, the kidnap and murder of the three young Israelis was a horrific act. But it’s anything but clear whether Hamas leadership was responsible for their kidnapping and murder. It’s not even clear whether they were killed late on June 12 or early June 13 — the latter date within Palestine’s grant of jurisdiction. So how can Palestine’s choice of June 13 be some kind of devious move to maximise Israel’s criminal exposure while minimising its own?

More fundamentally, though, I simply reject the basic premise of Karin’s argument: namely, that taking a dispute to an international criminal tribunal with general jurisdiction can be seen as lawfare. Perhaps it’s possible to view tribunals with a one-sided mandate (de jure or de facto) as lawfare — the IMT prosecuting only Nazis, the ICTR prosecuting only Hutus. But the ICC? The ICC investigates situations, not specific crimes. By ratifying the Rome Statute and filing its Art. 12(3) declaration, Palestine has taken both Israel and itself to the ICC, not Israel alone. Palestine thus no longer has any control whatsoever over which individuals and which crimes the OTP investigates. That’s not lawfare, that’s bravery — especially given that, as I’ve pointed out time and again on the blog, the OTP is quite likely to go after Hamas crimes before it goes after Israeli crimes. In fact, the only lawfare being practiced in the context of Operation Protective Edge would seem to be by Israel, which has responded to the OTP’s preliminary investigation — which it opened as a matter of situation-neutral policy, not because of some kind of animus toward Israel — by condemning the ICC as a “political body” and launching a campaign to convince member states to stop funding it (which would be a clear violation of their treaty obligations under the Rome Statute).

I have little doubt that Palestine would be delighted if the ICC prosecuted only Israelis for international crimes. But it has to know how unlikely that is. Instead of condemning its decision to ratify the Rome Statute and submit an Art. 12(3) declaration as “lawfare,” therefore, we should be celebrating its commitment to international criminal justice. Indeed, if a state can practice lawfare by giving an international criminal tribunal the jurisdiction to investigate its own crimes as well as the crimes committed by its enemy, the concept has no meaning at all.

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dov jacobs

Kevin,

I think one can more or less agree with you on all your points (which I do) and still call it “lawfare”. Not to pull a Bill Clinton on you, but it really depends on what the meaning of “lawfare” is.

For me, it is not as linked to the substance as you. It’s not necessarily about obtaining a clear legal advantage, it’s about using law as a strategic tool. In this sense, it’s difficult to affirm that the general strategy of the Palestinians and their supporters has not been one of lawfare in the past decade, from the ICJ advisory opinion to attempts at joining various treaties and IOs to bolster their claim to Statehood. This “move” to the ICC might definitely carry with it a higher degree of risk for the Palestinians, but I think it would be short-sighted to not see it in the broader strategy.

One last point: I don’t see lawfare as a negative noun. I think this is the way to go for the Palestinians. There is for me no denying that it is lawfare. The question is now whether it will backfire or not.

Charlesloewe
Charlesloewe

Response…
If all warring parties resorted to law fare rather than violations of the Geneva conventions and Icc statute, the ICc would go out of business.

el roam
el roam

Thanks for the post . With all due respect , you could name it : as ” lawfare ” or not , justify it or not as such , it doesn’t matter basic configuration ( factually and morally ) : The failure of peace talks, led by secretary of state, John Kerry, where the turning point, for the Palestinian authority. Right after that failure , plans already matured , has been pulled out , and used as leverage on the Israeli government , a sort of : ” Comply or die ….. ” And why strategically?? Simply, instead of reaching compromise, fair one, rational one (in peace talks) they were using the court as leverage for the doctrine of : nothing or all , until the last bit of it!! Second , there is no bravery in it !! The ICC wouldn’t be able to charge and implicate , any official from the west bank , but from the Hamas (the firsts , did no wrong , no crime , but opposing clearly violence ) . Now if you would take into account, the old and bitter rivalry between Hamas and the west bank, you can very quickly change your… Read more »

Mendieta
Mendieta

I have to agree with el roam here. Whether you can call it lawfare or not is irrelevant. Abbas made a political move to put pressure on Israel in light of the failure of the peace negotiations and the Security Councils’ lack of support to his latest initiative. But Abbas turning to the ICC is not inherently ‘negative’. It will not be the first or last time an international actor uses an international (or domestic) court to advance a political agenda.

Calling the PA actions as daring fails to take into account the political realities in the region. An Art. 12(3) declaration purported to accept jurisdiction from 1 July 2002 would have encompassed both Hamas, the PA-Fatah and Israel’s acts. By choosing 13 June 2014, Abbas ensured that only Hamas and Israel’s acts in the last war may come under the jurisdiction of the ICC, without allowing the court the chance to investigate precisely the question that Kevin referred to, namely whether the Hamas leadership was responsible for the kidnapping and murder of the three Israeli teenagers. You can call this “lawfare” or “legal strategy”, but certainly not an “act of bravery”.

el roam
el roam

Kevin , Your point concerning the Hamas, doesn’t take to account their mental and physical situation: Suppose that the ICC would implicate them ( and it should ) then what ?? can the court get his hand on them they thins ?? Wouldn’t their revenge on the Israeli state be more sweeter than any summon or warrant of arrest issued by the court?? The damage to the Israeli state and its officials , would exceed any futile procedure of such. They are under total siege, each one of them would anyway sacrifice his life for their cause, the human situation or general situation is horrific. From their point of view, can’t be really worse than that !! Subjectively, legally, I have learned, that they have certain self persuasion, that the only case, Israel or the ICC can generate, is the launch of rockets on civil targets. Yet, they claim, not done deliberately, but: they lack means, for accurate pinpoint , and anyway, they are desperate and helpless, due to the siege on Gaza. In terms of international public opinion , has been proved : military conflicts , have gained them , image of helpless victims , while implicating the Israelis… Read more »

el roam
el roam

with your permission , two corrections in my above last comment :

1) they think , not : they thin ….

2) Humanitarian situation , not : human …..

Thanks

Mendieta
Mendieta

El roam stole the words from my mouth. As a general observation, I think that characterizing any of Hamas’ acts as brave is the last thing you want to be arguing Kevin.

Nimrod Karin

[I have deleted this comment because I intend to turn it into a guest post. It will be up soon — KJH]

Hostage
Hostage

Re: “There is much to respect about the posts, which are careful, substantive, and avoid needless hyperbole.”

Really? On 8 December 2014 the ICC Assembly of State Parties met in New York and unanimously voted to accept Palestine as an ICC observer state. That story was picked up by the wire services and reported in the Jerusalem Post and Al Jazeera, e.g. http://www.jpost.com/Arab-Israeli-Conflict/Palestinians-gain-observer-status-at-ICC-384071

So why do you suppose that the twin pair of articles published a month later by Karin and Howse failed to mention that fact? It certainly goes a long way towards discrediting their positions in my opinion.

I also thought the narratives in the articles and letters to the editor were tendentious and similarly at odds with many elements of the documentary historical record.

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Andrew Fleming Chicago

Opinio Juris » Blog Archive No, Going to the ICC Is Not “Lawfare” by Palestine – Opinio Juris

Matt M.
Matt M.

When the letter of the law is twist and bent to suit political purposes, that is rightfully called lawfare.

The very basis of this issue is lawfare in virtue of the fact that there is no State of Palestine according to the uncontroversial and settled matter that a state meet the qualifications of the Montevideo Convention.

Perhaps we should also allow a paperclip and a jalapeno pepper to also join the ICC.

Hostage
Hostage

Re: “The very basis of this issue is lawfare in virtue of the fact that there is no State of Palestine according to the uncontroversial and settled matter that a state meet the qualifications of the Montevideo Convention.” Sorry, but the Montevideo Convention is a treaty in force between a number of contracting states. The majority of them have long since recognized the State of Palestine and there is no compromissory clause that would allow you or any other party to dispute their legal determinations. Quite a few of them are members of the ICC Assembly of State Parties which voted unanimously on 8 December 2014 to accept Palestine as an ICC observer state. In fact, the Palestinian government supplied the Prosecutor with a list of 61 bilateral treaties with other states in 2009 when it filed the first Article 12(3) declaration. The League of Arab States also supplied an official exhibit on the status of Palestine that had a long list of treaties between its members and Palestine. The treaties on diplomatic immunity and extradition for acts of terrorism pre-dated the entry into force of the Rome Statute. Likewise, the General Assembly resolution that upgraded Palestine’s observer status cited… Read more »

Matt M.
Matt M.

You clearly did not understand my reference to the Montevideo Convention. Of course it’s a treaty, but the point discussed here is its reference to a pillar of international law. Any introductory international law textbook will cite the Montevideo Convention not in reference to its law as a treaty but for what it universally reflects.

I’ll defer: perhaps you could enlighten us on the two theories of statehood and provide me with sufficient evidence of customary international law that my view of the requirements for statehood have been obviated.

It is utterly absurd that the concept of statehood would be left – at the deepest levels of international law – to the determination of individual states. Using that logic, there’s nothing preventing a paperclip from being declared a state.

Hostage
Hostage

Re: ” but the point discussed here is its reference to a pillar of international law. Any introductory international law textbook will cite the Montevideo Convention not in reference to its law as a treaty but for what it universally reflects.”

Correction: We’re not talking about two different subjects. I don’t accept the proposition that there are any “universal” criteria reflected in the text of the Convention, which the responsible contracting state parties didn’t already consider to be fulfilled, before they formally recognized the State of Palestine.

Matt M.
Matt M.

For the second time:

I’ll defer: perhaps you could enlighten us on the two theories of statehood and provide me with sufficient evidence of customary international law that my view of the requirements for statehood have been obviated

Hostage
Hostage

Re: “For the second time” You’ve actually commented three times so far without mentioning a specific rule of modern international law that any state or international organization has violated in the case of the State of Palestine. Re: “I’ll defer: perhaps you could enlighten us on the two theories of statehood and provide me with sufficient evidence of customary international law that my view of the requirements for statehood have been obviated” One of Nimrod’s letters to the editor complained that “Palestinian claim for statehood seems to rely on a weird conflation of both constitutive and declarative theories of public international law.” The notion that the applicable law has to conform to either the constitutive or declarative theories is a completely mistaken view. For example, Opinio Juris recently published an article, “Must Reads from the Past Decade?”. James Crawford’s, The Creation of States in International Law (Oxford 2d ed. 2006) topped the list. It’s interesting to note that he explained (page 5) that neither theory can be employed to satisfactorily explain actual modern practice. Crawford said: “It is sometimes suggested that the ‘great debate’ over the character of recognition has done nothing but confuse the issues, that it is mistaken… Read more »

Matt M.
Matt M.

The European Community’s Arbitration Commission of the Peace Conference on Yugoslavia (commonly referred to as the Badinter Arbitration Committee) held that “the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a state is characterized by sovereignty, and “the existence or disappearance of the State is a question of fact; that the effects of recognition by other States are purely declaratory.” (If this looks like a copy-and-paste job, it is. It’s from something I am working on. I copy-and-pasted myself). Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising from the Dissolution of Yugoslavia (January 11 and July 14 1992. Printed in International Legal Materials 31. p. 1495. Opinion 1(a), 1(b). So in your opinion, the body established by the then-EC was incorrect in making such a definitive claim? I’ve provided you with a well established definition of statehood. You, in turn, have provided me with no such definition. Instead, you have applied only instances in which the rule was apparently violated. There are, of course, great issues here. I am sympathetic to the idea that there is in fact a state of Palestine – but… Read more »

Hillel Neuer

Kevin,

Please correct: it was not the 18-member Human Rights Committee that created the COI, but the 47-nation Human Rights Council.

Thanks.

Hostage
Hostage

Re: “I’ve provided you with a well established definition of statehood. You, in turn, have provided me with no such definition. Instead, you have applied only instances in which the rule was apparently violated.” I think you are trying to eat your cake and still have it too. I pointed out that the majority of state parties to the Montevideo Convention have long-since recognized the existence of the State of Palestine – and that it isn’t a justiciable question under the terms of the convention – despite the fact that you personally feel Palestine doesn’t qualify in some respect. A number of EC states have already recognized Palestine’s existence too. The “common” definition you mention above wasn’t applied by the EC members and many other states to the extraordinary case of the Baltic states, even as the Badinter Arbitration was taking place in back in 1991. More to the point, the majority of the members of the EC and the international community of states have ignored the opinion of the Badinter Commission on the subject of the existence of the State of Kosovo and their right to treat it as such. Maybe you should stop trying to define the term… Read more »

Hostage
Hostage

Re: “that the effects of recognition by other States are purely declaratory.” That proposition can’t be reconciled with the views held by supporters of the constitutive theory or the actual state practice of some of the parties to the Montevideo Convention. For example, in OETJEN v. CENTRAL LEATHER CO., 246 U.S. 297 (1918), the Supreme Court cited a number of earlier cases and held that: “It is also the result of the interpretation by this court of the principles of international law that when a government which originates in revolution or revolt is recognized by the political department of our government as the de jure government of the country in which it is established, such recognition is retroactive in effect and validates all the actions and conduct of the government so recognized from the commencement of its existence.” The doctrine of the retroactive effect of recognition has been employed in landmark US, UK, French, and Dutch cases. See Ti-chiang Chen, “The international law of recognition, with special reference to practice in Great Britain and the United States”, Praeger, 1951, “Introduction” page 4 and “Recognition of States” on page 34. The Secretary General’s follow-up report A/67/738 dated 03/08/2013 on General Assembly… Read more »