10 Feb The Gray Lady Botches Judge Kovács’ Dissent
Few things bother me more than journalists who seemingly cannot be bothered to accurately describe what the ICC does. Here is what Isabel Kershner, a Jerusalem correspondent for the New York Times, wrote about the Pre-Trial Chamber’s recent decision that the Court has jurisdiction over the situation in Palestine (my emphasis):
Dealing a severe diplomatic blow to Israel, the court ruled that for its purposes, Palestine qualified as the state on the territory where the events in question occurred and defined the territorial jurisdiction as extending to the West Bank, Gaza and East Jerusalem. The ruling was not unanimous, with one of the three judges, Péter Kovács, presenting a dissenting opinion, disputing the notion that the court has jurisdiction in this case.
This is simply false. False-false, not debatably false. Judge Kovács’ long and somewhat ponderous dissent makes clear that he is not particularly enamoured with the majority’s decision. But he ultimately agrees with the majority that Palestine is a State Party and that, as a result, the OTP can investigate at least some crimes committed on the territory of Palestine. Here are the relevant paragraphs:
267. I see no reason or legal procedure in the Rome Statute to nullify ex post facto the Palestinian accession. Palestine is a State Party, despite its current and perhaps peculiar international legal situation. As a State in statu nascendi, Palestine may also perform its rights and obligations. However, this does not mean that its ‘statehood’ has been achieved, that the issue of its territory as ‘territory of the State’ has been settled, or that its ‘borders’ can be conceived as State boundaries.
372. Rewording these considerations into the form of a disposition, the answer to the Prosecutor’s Request is, in my view, as follows: The geographical scope of application of the Prosecutor’s competence to investigate covers the territories of the West-Bank, East-Jerusalem and the Gaza strip but – under the actual legal coordinates and with the exception of the hypothesis of article 13(b) of the Rome Statute – subject to due consideration of the different legal regimes applied in areas A, B, C and East Jerusalem according to the Interim agreement (and in particular according to its article XVII), Annex IV attached thereto (and in particular according to the dispositions under rules 1(a), 600 1(c), 601 (2), 602 (4)603 et (7)604 of Article I) and other subsequent Israeli-Palestinian agreements adopted on this basis, which could eventually imply the duty to follow the rules of article 12(3) of the Rome Statute and the utility of profiting from the possibility stipulated in article 87(5) of the Rome Statute.
I won’t try to explain precisely what territory Judge Kovács believes the OTP is competent to investigate. Frankly, I’m not sure I could. But these paragraphs make inordinately clear that the PTC unanimously agreed that Palestine is a State Party and that, as a result, the Court has jurisdiction over the situation in Palestine. The disagreement between Judge Kovács and the majority exclusively concerns what Palestinian territory should be considered within the Court’s jurisdiction.
In short, it is false to say, as Kershner does, that Judge Kovács “disput[ed] the notion that the court has jurisdiction in this case.” I called the error to Kershner’s attention on Twitter, assuming that she would correct the article. Unfortunately, my confidence proved unwarranted: the article remains unchanged two days later.
Some journalistic errors, of course, are more consequential than others. Kershner’s error, I think, falls squarely into the “extremely consequential” category. The PTC’s decision has already sent shockwaves through the international community, predictably infuriating Israel and the US and eliciting condemnations from a number of states, such as Germany. (None of whom bothered to challenge Palestine’s accession to the Rome Statute in 2015.) Kershner’s inaccurate article gives the impression that the PTC was badly fractured, with one of the judges believing that the ICC has no jurisdiction over the Palestine situation, even though all three judges actually agreed on that critical point. Just imagine if the headline read “ICC Rules Unanimously It Has Jurisdiction to Examine Possible Israel War Crimes.” Or, even better (don’t get me started on this one): “ICC Rules Unanimously It Has Jurisdiction to Examine Possible Israeli and Palestinian War Crimes.” The difference is obvious.
The New York Times can — and must — do better.