The New York Review of Books - USA (2020-08-20)

52 The New York Review

Netanyahu greatly desires. Israel faces

a genuine ICC problem. The court has

no jurisdiction over crimes committed

on Israeli territory (except those com-

mitted by nationals of ICC members)

or by Israelis—unless they commit

crimes in a state that grants the court

jurisdiction. The Palestinian Authority

first approached the ICC in 2009, but

the prosecutor refused to take jurisdic-

tion over the Occupied Territories and

Gaza because the UN had not deemed

Palestine a state. That changed in 2012,

when the General Assembly upgraded

its status to “non- member observer

state.” More than 130 countries now

recognize Palestinian statehood, in-

cluding 77 members of the ICC. By

the time the Palestinians came back

to The Hague in 2015, Palestine had

joined more than a dozen international

treaties, including the Geneva Con-

ventions, and this time Bensouda had

little choice but to accept the request

and open a preliminary examination of

conduct by both sides.

Israel does not have much to fear

from an investigation connected with

its wars in Gaza. The ICC’s definition

of disproportionate attack sets an al-

most impossibly high hurdle to prose-

cution, and the court’s recent acquittal

of a Congolese warlord changed the

law on command responsibility to

make it hard to charge high- level lead-

ers. The prosecutor will not go forward

with a weak case, and Bensouda has

resolutely refused to proceed against

Israelis, despite judicial pressure, in

an unrelated case concerning a violent

shipboard encounter in 2010 between

Israeli commandos and activists trying

to break the blockade of Gaza. Israel

has a sophisticated military justice sys-

tem, and it might succeed in a claim that

it has already investigated war crimes

complaints and found no basis to pros-

ecute. By contrast, Hamas and Islamic

Jihad have boasted about targeting

Israeli civilians, so their command-

ers are heavily exposed to war crimes

charges. The ICC can prosecute only

individuals, not organizations or states,

so neither the Israeli government nor

groups like Hamas and Islamic Jihad

can be investigated. That complicates

the prosecutor’s task, because she must

find evidence directly linking individ-

ual leaders to specific crimes.

Israel is most vulnerable to ICC inves-

tigation of its West Bank settlements.

Transferring your own people into oc-

cupied territory violates the Geneva

Conventions, as Israel’s legal adviser

warned the government in a secret 1967

memo, and it is a war crime under the

Rome Statute.^4 Israel has devised an

arcane legal theory that it never occu-

pied the West Bank, but it is fair to say

that nobody outside Israel and the US

takes that position seriously. However,

the Palestinians granted jurisdiction to

the ICC only over events after July 8,

2014, the date of the last major Israeli

military operation in Gaza. Presum-

ably, only settlement activity after that

date could come under ICC scrutiny,

and (under the terms of the Rome

Statute) only if the Israeli government

itself sponsored that activity. Israeli ex-

posure may not be great, even if it an-

nexes Palestinian territory. Although

such annexations count as aggression, a

loophole in the Rome Statute does not

allow the court to prosecute aggression

by nonmembers.

When Bensouda announced last De-

cember that she wished to investigate

“the situation in Palestine,” she also

asked the judges to clarify whether the

court has jurisdiction there. Palestine

may be a state in the eyes of the Gen-

eral Assembly, but it obviously lacks

the control over its territory that is one

of the legal benchmarks of statehood.

Common sense says that if Palestine

is already a state, the two- state solu-

tion already exists, which would cer-

tainly come as a surprise to most of the

world. What the court must consider is

whether Palestine is sufficiently state-

like to transfer criminal jurisdiction to

the ICC. The answer is not obvious, nor

is it obvious where the Israel–Palestine

border lies for jurisdictional purposes.

The arguments before the court are

legalistic in the extreme, and the Pre-

Trial Chamber may well deny Bensou-

da’s request. The International Court

of Justice (not to be confused with the

ICC) held in 2004 that the boundary is

“subject to such rectification as might

be agreed upon by the parties.” Israel’s

problem is that Netanyahu has no in-

terest in agreement, only in unilateral

action. That will be hard for the court

to ignore. The Israeli press reports that

the Pre- Trial Chamber’s decision will

be released very soon.

The ICC is beset by problems, some of

its own making, as even its supporters

agree. It’s expensive, its proceedings

are interminable, and the prosecutor

has won only two convictions—both in-

volving Congolese warlords—and suf-

fered several humiliating acquittals of

men who were far from innocent. Rela-

tions with some African countries have

been tense since the previous prosecutor

indicted the leaders of Sudan for geno-

cide in Darfur and of Kenya for crimes

against humanity during post- election

violence in 2008. Eventually, Bensouda

closed the Kenyan case because of ob-

struction and witness intimidation.

Several African members threatened

to quit the ICC, but so far only Burundi

has done so, after Bensouda began in-

vestigating crimes against humanity in

that troubled country.

The lack of jurisdiction over non-

members means that some of the

world’s most troubling crimes are

untouchable by the ICC—enormous

crimes in Syria, including thousands

of well- documented cases of torture^5 ;

Saudi bombings of civilians in Yemen;

Chinese concentration camps for Ui-

ghurs; Russia’s annexation of Crimea;

and terrible crimes against humanity in

North Korea, which as documented by

a UN commission of inquiry included

extermination, murder, enslave-

ment, torture, imprisonment, rape,

forced abortions and other sexual

violence, persecution on politi-

cal, religious, racial and gender

grounds, the forcible transfer of

populations, the enforced disap-

pearance of persons and the in-

humane act of knowingly causing

prolonged starvation.

The biggest problem, though, is the

court’s helplessness against criminal

leaders and officials as long as they hold

power. It can’t arrest them on its own,

and they have little difficulty blocking

access to evidence and frightening wit-

nesses into silence. In the brutal world

of power politics, the court can operate

only against losers. Some observers

recommend targeting mid- level perpe-

trators whom ruthless leaders may be

willing to sacrifice as a sop to interna-

tional pressure. The trouble with this

strategy is that it would leave those in

power luxuriating in peace while their

underlings go to prison. For a court

whose mandate is to “put an end to

impunity” for “the most serious crimes

of international concern,” aiming low

would be a crushing humiliation.

Do international courts do much

good? There is some evidence that the

ICC deters wa r c r i mes i n c on fl ict zones.^6

Its more important effect is encourag-

ing states to keep their own houses in

order. Dozens of states have rewritten

their criminal codes so that they can

investigate and prosecute ICC crimes

themselves if they face credible accusa-

tions; dozens more are in the process of

doing so. Additionally, tribunals have

sometimes turned toxic leaders like

Radovan Karadžiþ and Joseph Kony

into fugitives, and the hope for account-

ability has inspired victims and wit-

nesses to tell their stories, sometimes at

great personal risk—stories that would

otherwise be lost to historical memory.

Today, for better and for worse, the

ICC is bigger than itself. The other

international tribunals have wound

down their business, leaving it as the

torchbearer of international justice. It

symbolizes a measure of redress to vic-

tims of atrocities—a promise that their

sufferings will not be buried under

denialist lies and pious hypocrisy. Just

as importantly, today the ICC symbol-

izes an entire international order that

leaders like Trump and Putin wish to

destroy. The ICC can’t possibly live up

to such outsize expectations, and it may

eventually fail. But if the Trump admin-

istration takes it down by brute force,

that would, in David Crane’s words, sig-

nal an end to the age of accountability

and a move to the age of the strongman.

There are forces of resistance, in-

cluding the ten UN Security Council

members that belong to the ICC, who

issued a joint statement supporting it

“undeterred by any threats against the

Court, its officials and those cooper-

ating with it.” The EU’s foreign policy

chief, Josep Borrell, voiced “steadfast”

support for the ICC, and sixty- seven

ICC members, including staunch US

allies, issued a joint statement support-

ing the court against the sanctions.

An EU “blocking statute” that pro-

tects Europeans against US sanctions

on Cuba and Iran could be expanded

to include sanctions against the ICC.

Pressure from many quarters saved the

US Office of Global Criminal Justice,

and the Senate recently confirmed a

new ambassador- at- large, Morse Tan,

as its head. The ICC deserves no less

support. Q

—July 23, 2020

(^4) Theodor Meron, “The West Bank and
International Humanitarian Law on
the Eve of the Fiftieth Anniversary of
the Six- Day War,” American Journal
of International Law, Vol. 111, No. 2
(2017). Meron was legal adviser to Isra-
el’s Ministry of Foreign Affairs in 1967.
The memo came to light in 2006.
(^5) See my “Syrian Torture: What the
US Must Do,” NYR Daily, February 3,
2014.
(^6) Hyeran Jo and Beth A. Simmons,
“Can the International Criminal Court
Deter Atrocity?,” International Orga-
nization, Vol. 70, No. 3 (2016).
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