On Palestine, International Law and the International Criminal Court

Chantal Meloni joins JiC for this first post in our symposium on Palestine and the International Criminal Court. Chantal is a Lecturer in International Criminal Law at the University of Milan and a visiting researcher at the Humboldt University of Berlin.

A Palestinian boy carries his belongings following heavy bombardment of Gaza by Israeli forces in August 2014 (Photo: Associated Press)

A Palestinian boy carries his belongings following heavy bombardment of Gaza by Israeli forces in August 2014 (Photo: Associated Press)

Until recently, the idea of using international law with regards to the Israeli-Palestinian conflict was mostly a theoretical exercise, something invoked by academics and activists, and in debates within political bodies of the United Nations (Schabas, Foreword, in Is there a Court for Gaza?).

For decades, the issue did not reach the docket of international courts and tribunals. To some extent this is because the institutions themselves did not previously exist or because they were unavailable to the Palestinians. A result of its uncertain international legal status, Palestine could not ratify the Statute of the International Criminal Court (ICC), nor could it accede to human rights law instruments and international treaties.

Thus for a long time it appeared that there was no court capable of providing a forum for the Palestinian situation. As we know, this is no longer the case: Over the past twelve years, both the International Court of Justice – with the 2004 Advisory Opinion on the Wall – as well as the ICC have been confronted with aspects of the Israeli-Palestinian conflict. Following its ratification of the Rome Statute and a new declaration lodged under Art. 12(3) of the ICC Statute accepting the jurisdiction of the Court since 13 June 2014, on the 1st April 2015 Palestine will become the 123rd member State of the ICC. Both Palestinian governmental officials and human rights organizations and lawyers representing the victims are anticipating their filing of a series of complaints and ‘communications’ to the ICC Office of the Prosecutor (OTP), covering the whole spectrum of alleged crimes committed by Israeli officials against the Palestinian people, from the war crimes in Gaza, to the settlements in the West Bank. Meanwhile, the OTP has opened a ‘preliminary examination‘ into the situation in Palestine.

This increased recourse to international law by the Palestinians has been labelled by some commentators as ‘lawfare’. The lawfare accusation in this case appears to be improper and malicious. As professor Schabas wrote: “The ‘lawfare’ label is nothing more than frustrated resistance to the availability of new mechanisms and institutions whereby international law can be applied to present conflicts, including those involving Israel and Palestine.” (Foreword, in Is there a Court for Gaza?).

It is anyhow notable given how dangerous the recourse to international law mechanisms by Palestine is perceived by Israel and its allies. It is also important to recall the incredible amount of pressure that was put on Palestine at the time of its ‘UN bid’ in 2011, when some Western States, as Italy and the UK, conditioned their support for the resolution at the UN: Palestine was asked to “refrain from applying for membership of the International Criminal Court or the International Court of Justice, which could both be used to pursue war crimes charges or another legal claim against Israel” (see K.J. Heller, Britain to support Palestine’s UNGA Resolution?).

It shall be remembered that after the so-called ‘Operation Cast Lead’ in Gaza, in January 2009 Palestine made a first attempt to activate the jurisdiction of the ICC. In the person of the then-Minister of Justice, it lodged a declaration under Art. 12(3) of the ICC Statute, accepting the jurisdiction of the Court retroactively since July 2002. Then, in September 2009, the UN Fact Finding Mission on the Gaza Conflict issued a very detailed and comprehensive report (so called ‘Goldstone Report’) outlining the commission of crimes by both sides, but in particular by the Israeli side. As Richard Falk put it: “the Goldstone Report broke the sound barrier” (The Goldstone Report and the Goldstone Retreat, in Is there a Court for Gaza?) The fact that the UN established such a high profile mission to investigate and document allegations of war crimes committed by Israel marked a novelty in the politics of the UN towards Israel. But the importance of that Report rested in particular in its precise recommendations, which emphasized the need for accountability measures, including recourse to the ICC.

At the same time, a Committee of Experts was established by the UN with the mandate to evaluate the internal investigations in Israel and Palestine. However, notwithstanding its endorsement by the UN and beyond, the political pressure to block and minimize the Report’s impact within the UN and in other fora, as the ICC, unfortunately meant that the Goldstone Report’s powerful recommendations remained un-instituted. The rights of the victims once again were cynically sacrificed vis-à-vis political calculations and treated as bargaining chips in the name of an empty and long-failed ‘peace-process’. Continue reading

Posted in Gaza, International Criminal Court (ICC), International Law, Israel, Palestine, Palestine and ICC Symposium, Palestine and the ICC, Peace Negotiations | Leave a comment

Palestine and the International Criminal Court – A Symposium

Palestine and the ICC SymposiumOn 1 April 2015, Palestine officially becomes a member of the International Criminal Court (ICC). Unsurprisingly, the Palestinian Authority’s decision to join the ICC has instigated a fiery and feisty debate over the wisdom and implications of an intervention by the Court in the world’s most protracted conflict and peace process.

JiC is very excited to host a symposium on Palestine and the ICC. The symposium stems from a recent roundtable, organized by Kirsten Ainley and hosted by the Centre of International Studies, at the LSE on ‘Palestine and International Justice’.

Over the next two weeks, contributors will cover a host of pressing questions:

Why has Palestine decided to ratify the Rome Statute now? What is the history of Palestinian attempts to achieve international justice for war crimes and crimes against humanity committed on its soil? Is Palestine’s accession to the Court a sign of failed diplomacy by external powers?

To what extent was Palestine’s decision to join the Court motivated by concerns about justice and to what extent was it a political attempt to undermine Israel?

What are the implications of the accession to the ICC for Palestine?

What are the implications of Palestine’s accession to the ICC for the Court? Is it a threat to the Court’s nascent success by introducing politics so centrally to its work? i.e. Is the Court in a no-win position in its decisions on how to deal with the situation in Palestine?

What are the implications of Palestine’s accession to the ICC for the peace process with Israel? Is the ICC a barrier to peace, likely to facilitate peace, or likely to have no real effects on the process?

How is Palestine’s accession to the ICC likely to impact on the broader politics of international criminal justice? Is it, for instance, an opportunity to rebuild relationships between the ICC and African Union powers?

How likely are we to see trials in cases to do with the 2014 Israeli attacks on Gaza or the Israeli settlement policy, which the PLO has indicated it will file complaints to the Court about on 1st April 2015? How likely are we to see trials in cases to do with Hamas attacks on Israeli?

To answer these questions, JiC will host articles from a number of scholars and commentators, including Chantal Meloni, Michael Kearney, Leslie Vinjamuri, Dov Jacobs, Kevin Jon Heller, Kirsten Ainley, and myself.

As always, we welcome your thoughts. Our goal is to create an open and honest dialogue within a forum that respects the opinions of all participants.

Posted in International Criminal Court (ICC), International Law, Israel, JiC News, Justice, Palestine, Palestine and the ICC, Peace Negotiations, Peace Processes | Tagged | 1 Comment

JiC Hits 10,000 Followers – Thank You!

Justice in ConflictDear readers,

JiC has just hit 10,000 subscribers over its various platforms. Thank you, from the bottom of my heart and the tips of my fingers, for everyone who follows us on Facebook, Twitter or directly on the blog. Your readership and interest is humbling and massively rewarding.

Upwards and onwards!

- Mark

Posted in JiC News | 3 Comments

On the Table: Trading Justice for Peace in Palestine

(Photo: Kevin Lemarque / Reuters)

(Photo: Kevin Lemarque / Reuters)

In the wake of this week’s elections in Israel, Palestinian officials have exclaimed their intention to “intensify” their diplomatic campaign against Israel and bring forward charges against Israeli officials to the International Criminal Court (ICC). Could Palestine’s decision to pursue international criminal justice threaten the Middle East peace process? Or could it salvage moribund peace talks via a trade-off of ICC justice for peace between Palestine and Israel?

An Electoral Defeat of the Peace Process?

Anyone in favour of reviving the Oslo peace process is almost surely disparaging the results of Israel’s election which secured Benjamin Netanyahu a fourth term as Prime Minister. Fearing he would lose a tight race on the eve of the election, Netanyahu relied on the xenophobic strategy of asking Jewish Israelis to take up an electoral, voter-turnout war against the apparent bus-loads of Arab-Israeli citizens voting against his party. At the same time, in order to shore up the radical right of the political spectrum, Netanyahu declared that, if elected, he would never recognize a Palestinian state. To do so, he insisted, was to foster a breeding ground for terror and radical Islam.

It’s clear that the White House had its fingers crossed for a Netanyahu defeat at the polls. US President Barack Obama is apparently convinced that engaging with Netanyahu is futile and has outsourced any contact with Netanyahu to Secretary of State John Kerry. The White House criticized Netanyahu’s “divisive” rhetoric in the lead up to election day and is vehemently at odds with the Israeli leader’s position against recognizing Palestinian statehood.

Still, it may be premature to call the Oslo peace process dead. According to John Hudson and Colum Lynch, Washington may be preparing to ramp up efforts to push for a two-state solution at the UN Security Council. What are they using for leverage? The International Criminal Court.

The deliberations over the future of the U.S. diplomatic efforts are playing out just weeks before the Palestinians are scheduled to join the International Criminal Court, a move that is certain to heighten diplomatic tensions between Israel and the Palestinians. On Wednesday, the Palestine Liberation Organization’s top diplomat in the United States told Foreign Policy the Palestinians would move forward with plans to use the ICC to try to hold Israel accountable for alleged war crimes during last summer’s war in Gaza. (Israel says it worked hard to avoid civilian casualties, of which there were many, and blames Hamas militants for taking shelter in populated areas.)

“The fact that we have a government in Israel publicly opposing a two-state solution just reinforces our position that this conflict must be handled by the international community,” Maen Rashid Areikat said.

Ilan Goldenberg, a former member of the Obama administration’s Mideast peace team, told FP that Washington might be inclined to support a Security Council resolution backing a two-state solution as an alternative to the Palestinian effort to hold Israel accountable at the ICC.

“If it was done, it could protect Israel from a worse outcome,” he said.

Under this scenario, the United States would seek guarantees from the international community to hold off on ICC activity in exchange for a Security Council resolution outlining international standards for a final peace agreement between the Israelis and Palestinians.

“The Israelis will probably resist and say this is a bad idea, but they could also be convinced that this is better than the alternative,” said Goldenberg.

Specifically, the US appears interested in having the UN Security Council defer, under Article 16 of the Rome Statute, any investigation (or prosecution) by the ICC of alleged crimes committed on Palestinian territory in exchange for a resolution that galvanizes conclusive peace negotiations. Such a justice-for-peace trade-off would yield a curious blend of both costs and benefits.

Gaza City in 2012 (Photo: Mohammed Abed / AFP)

Gaza City in 2012 (Photo: Mohammed Abed / AFP)

The Costs and Benefits of Trading Justice for Peace

As David Bosco has pointed out, one drawback of trading justice for peace stems from the fact that an Article 16 deferral is inherently unstable. Article 16 requires that the UN Security Council agree to renew any deferral every twelve months. Any Permanent-5 member has the ability to veto such a deferral and it is unclear whether the France or the UK (both ICC member-states) would be willing to support an Article 16 deferral – now or in the future. At the same time, while a deferral may work once, there’s no guarantee it would work down the line. Indeed, if relations between Russia and the US continue to deteriorate, would Moscow throw in the wrench a year or two from now? It seems entirely plausible. Continue reading

Posted in Article 16, International Criminal Court (ICC), International Criminal Justice, Israel, Palestine, Palestine and the ICC, Peace Negotiations, Peace Processes | Tagged , | 2 Comments

Why the ICC Won’t Prosecute Museveni

ICC Chief Prosecutor Fatou Bensouda with Ugandan President Yoweri Museveni (Photo: Daily Post)

ICC Chief Prosecutor Fatou Bensouda with Ugandan President Yoweri Museveni (Photo: Daily Post)

Anyone who has visited and spoken to the citizens of northern Uganda will be well aware of the harrowing stories of abuse and devastation wreaked by the vicious twenty-five year war between the Lord’s Resistance Army (LRA) rebels and the Government of Uganda. They will also be readily reminded that atrocities were perpetrated by both sides of the conflict. While the LRA is notorious for its brutal tactics of maiming its victims as well as kidnapping and enslaving children, at the height of the war, more people were dying from the conditions imposed on them in enforced displacement camps than from rebel attacks.

Yet the dominant narrative of the war in northern Uganda ascribes responsibility for atrocities – and the war – solely to the LRA, a framing of the conflict that has been compounded by the involvement of the International Criminal Court (ICC). While it would be absurd to defend the cruelty of LRA or deny the need to achieve accountability for their crimes, the dominant narrative’s neglect of state-perpetrated atrocities, has been lambasted by human rights groups, civil society organizations, and close observers of the war.

From the outset, the ICC showcased a bias towards the Government of Yoweri Museveni. In 2004 and following months of negotiations, then ICC Chief Prosecutor Luis Moreno-Ocampo infamously held a joint press conference with Museveni to announce that Kampala had referred the LRA to the ICC. This was no accident. Moreno-Ocampo was made aware by his staff of the appearance of partiality that this would create. Moreover, while the referral was later amended to cover the “situation in northern Uganda”, severe damage to the independence of the Court had been done. To many in northern Uganda as well as the Court’s supporters, the Prosecutor had shown his true colours: he would only prosecute the LRA and only the LRA. In 2005, five arrest warrants were issued, all for senior LRA commanders, including leader Joseph Kony. To this day, the ICC has never emerged from under this cloud of apparent bias towards the Museveni Government. Recent events won’t foster much hope that it ever will.

The decision to target only the LRA was strategic on the part of the Prosecutor. The ICC does not have its own police force nor the capability or capacity to conduct investigations without state cooperation (also see Alex Whiting’s incisive comment to this article below). As a result, it is often predisposed to investigating enemies of the referring state. Indeed, in every instance of a state referring itself to the Court, only rebel groups and government adversaries have been targeted for prosecution.

The logic here is rather simple: if the ICC were to attempt to prosecute state actors – such as the Government of Uganda and its military, the Ugandan Peoples Defence Forces (UPDF) – it would almost certainly and immediately lose state cooperation to conduct any investigations and thus achieve any justice. While the ideal is to prosecute all sides responsible for international crimes, it may not be the most pragmatic course of action to take. Put another way, perfect justice cannot be the enemy of any justice.

Museveni with former Chief Prosecutor Luis Moreno-Ocampo

Museveni with former Chief Prosecutor Luis Moreno-Ocampo

This position seems to guide the ICC’s Office of the Prosecutor. Indeed, Deputy Prosecutor James Stewart has described his office’s approach as such:

The Prosecutor… has always made it clear that she intends to look at all sides of the conflict. Sometimes you just can’t do everything at once. You have to make a choice between action and paralysis and between pragmatism and ideals. And I think if you choose pragmatic action, you really shouldn’t be criticized. But in the end, I suppose history will tell us whether or not the OTP has acted appropriately.

Here it is also noteworthy that, in Kenya, where the Court managed to target both sides of the 2007/08 post-election violence its cases have floundered, most spectacularly with the collapse of the case against President Uhuru Kenyatta.

Implicit in the ICC’s pursuit of a rather careful strategy is a story of progress: the Court must be pragmatic and imperfect now in order to achieve its ideal and perfect justice later. This should suggest that the Government of Uganda and the UPDF will eventually be prosecuted. But when will the ICC be mature enough to stand up to state actors? After all, it has been ten years since the ICC issued its initial arrest warrants against LRA commanders. Moreover, current Chief Prosecutor Fatou Bensouda recently reiterated that her office would investigate, “in complete independence and impartiality… all sides” involved in the war. Reality, however, is unlikely to meet this lofty rhetoric. Continue reading

Posted in Fatou Bensouda, ICC Prosecutor, International Criminal Court (ICC), Lord's Resistance Army (LRA), Uganda | 4 Comments

The ICC’s Crisis Mentality and the Limits of Global Justice

We are thrilled to welcome Barrie Sander as a regular author and contributor to JiC. In his latest post, Barrie examines how the ICC is a Court that was built to react and respond to emerging crises. Keep an eye out for more from Barrie in the coming days and weeks!

Chief Prosecutor Fatou Bensouda (Photo: ICC)

Chief Prosecutor Fatou Bensouda (Photo: ICC)

Last week, Mark characterised the International Criminal Court (ICC) as the kind of institution that needs to be in crisis. From that perspective, the most relevant question for the ICC is how it manages the crises it confronts. This post explores how the ICC is not only an institution in crisis, but also an institution that reacts and responds to crisis.

The ICC’s Crisis-Mentality

The ICC has tended to focus its resources on crisis situations, on situations of ongoing violent conflicts (e.g. Uganda, Darfur, Libya, Mali, Democratic Republic of Congo, Central African Republic) or recently expired periods of violence (e.g. Kenya and Côte d’Ivoire). To some extent this is understandable since the core crimes of the Rome Statute tend to arise in crisis situations. Yet, while the ICC’s crisis-focus may appear natural, it is also reflective of the workings of certain forms of power.

In particular, the ICC not only responds to crisis situations, it also constructs the terms on which such crises are understood. These terms tend to be reductionist in nature, often leading to what Gerry Simpson has referred to as “hegemonic histories”, myopic accounts of conflicts that tend to align with the interests of powerful states. This reductionism is partially a consequence of the ICC’s institutional design and partially a result of its foundations in criminal law.

Institutionally, while the ICC often proclaims the global and borderless nature of the atrocities it investigates, it is forced to function within a political environment in which state sovereignty remains an important instrument of power. To adopt Antonio Cassese’s famous image, the ICC is like a giant without arms and legs, heavily reliant on the limbs of States to function effectively. Consequently, when the ICC intervenes in a situation, it tends to pragmatically align itself with the interests of the UN Security Council and States Parties by only focusing on one side of a conflict. The danger of this practice has been to facilitate the promotion of simplified characterizations of crisis situations as battles between the forces of good and evil. The ICC’s reductionism is not without consequence. The Government of Uganda, for example, has instrumentalized the ICC’s investigation of the Lord’s Resistance Army (LRA) as a strategy both to delegitimize the LRA’s authority as well as to legitimize its own military incursions in neighbouring States under the banner of global justice.

Moreover, by focusing on the actions of flesh-and-blood individuals, the ICC may inadvertently divert attention from the roles played by a broader range of actors, including corporations, States, and international organisations. Similarly, by focusing on direct violence, the ICC tends to abstract crises from their underlying structural causes, with the risk of mystifying their origins. As Tor Krever has recently put it, “the preoccupation remains with the abnormality of conjunctural violence, rather than the normality of the forces – including economic and legal structures – that lurk beneath”.

The failure of the ICC to deal with more systemic forms of repression is not problematic per se; after all, selectivity and exclusion are inevitable features of all legal institutions. However, when the ICC monopolizes the language of global justice through assertions that it is responding to the “most serious crimes of concern to the international community as a whole”, it is more than a little troubling when many of the crimes that appear to support the interests of the “international community” are relegated to the shadows beyond the ICC’s grasp.

The new ICC premises under construction (Photo: Mark Kersten)

The new ICC premises under construction (Photo: Mark Kersten)

Responding to the Critique of the ICC’s Crisis Mentality

Clearly, some of the above critiques target unavoidable features of the ICC system, such as the limits of its jurisdiction and its inability to control how actors beyond the courtroom attempt to instrumentalize its practices. Equally, however, the ICC does have some room for maneuver in responding to these critiques.

(1) A Revised Public Relations Strategy

First, the ICC could adopt a more careful public relations strategy, one that expressly acknowledges the limits of its interventions in crisis situations. This would require an ICC Prosecutor prepared to self-reflexively draw attention to what she cannot do. Fatou Bensouda has arguably begun to adopt this strategy by using her symbolic power to attribute blame to the Security Council for failing to adequately assist her office with respect to the situation of Darfur. However, the ICC Prosecutor could go much further.

To take another example, in her press release concerning the surrender and transfer of Lord’s Resistance Army (LRA) Commander Dominic Ongwen, the ICC Prosecutor could have avoided painting a reductionist picture of the conflict in northern Uganda as one dominated by “the LRA’s reign of terror”. Instead, she could have reiterated the need for the investigation of alleged abuses committed by Ugandan governmental forces, for non-criminal forms of justice that are better equipped to meet the social and economic needs of those affected by the conflict, and for alternative, more participatory justice modalities that are better equipped to interrogate the structural causes of the conflict.

Critics may argue that, to the extent the ICC Prosecutor draws attention to abuses allegedly committed by Ugandan government forces, she risks losing Uganda’s support and cooperation in conducting its investigations against members of the LRA. But this is a risk worth taking if the ICC is to avoid being depicted as a partial instrument of the Ugandan government. Continue reading

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A Former Bush Official’s Breathtakingly Absurd ICC Proposal

Former US Vice President Dick Cheney. The kind of official who would benefit from Stephen Rademaker's proposal (Photo: Kevin Mazur via Getty Images)

Former US Vice President Dick Cheney. The kind of official who would benefit from Stephen Rademaker’s proposal (Photo: Kevin Mazur via Getty Images)

Most followers of the International Criminal Court (ICC) likely thought that the days of absurd proposals from US officials to undermine the ICC were at thing of the past. Surely no one would ever propose to do something as politically bizarre as, say, ‘unsigning’ the Rome Statute of the ICC or as futile as investing huge amounts of time and energy into deploying coercive diplomacy to pressure dozens of states into promising that no American citizen would end up be prosecuted in The Hague. No, those days were over. Heck, former Secretary of State Condoleezza Rice went so far as to say that her administration’s anti-ICC policies were like “shooting ourselves in the foot.” Fast-forward to today, the Obama administration speaks highly of its “positive engagement” and supports (at least some) of its interventions. Indeed, the biggest controversy in the US-ICC relationship is whether the ‘one-foot-in, one-foot-out‘ approach employed by Washington is actually hampering international justice and making global accountability more, rather than less, selective.

Then along came Stephen Rademaker, a former senior official in the George W. Bush administration who helped establish the Department of Homeland Security and acted as the assistant secretary of state responsible for arms control and nonproliferation between 2002 and 2006. In one fell swoop, Rademaker harked back to the foolish, counterproductive, and cavalier days of American anti-ICC hostility. In an article published today in Foreign Policy, Rademaker has proposed to make it a federal crime in the United States to prosecute American citizens at the ICC:

Congress should make it a federal criminal offense for an official of the ICC, or a foreign government acting under authority of the ICC, to indict, prosecute, detain, or imprison American military personnel or government officials for alleged war crimes.

Call it a “crime against sovereignty.” Any person indicted for such a crime would become a fugitive from U.S. justice, subject to international arrest warrants and liable to prosecution if brought into U.S. custody. They would, in other words, find themselves in precisely the same predicament as the American they sought to turn into an international fugitive through their official acts.

This isn’t the first time Rademaker has taken on the ICC. In advance of the Kampala Review Conference, where diplomats deliberated the potential for the Court to prosecute the crime of aggression, Rademaker exclaimed that the Court “is manifestly incapable of exercising the responsibility and making the judgments that would come with jurisdiction over aggression.” More recently, Rademaker blamed the ICC’s creators for wanting “an independent prosecutor who would be relentless in the pursuit of international justice, insulated to the maximum degree possible from all other considerations.” He also chimed in on the relationship between Washington and the ICC, stating that “[t]he Court cannot expect—and does not deserve—enhanced U.S. support unless it is fundamentally reformed in ways that transform it into a useful institution.” You can see the trend here. But his latest diatribe truly takes the cake.

Incredulously, and apparently without any sense of irony, Rademaker insists his proposal actually represents an improvement on ICC-US relations. Referring to the 2002 American Servicemembers Protection Act (also known as the “The Hague Invasion Act”), which grants the US President the authority to use “all necessary measures” to repatriate any American citizen prosecuted at the ICC, Rademaker argues that

threatening criminal prosecution in such cases would be a more modest and more credible response than threatening military action, which was the remedy Congress came up with the last time it considered the problem.

A more accurate perpetrator of a "crime against sovereignty"? (Photo: Larry Downing/Reuters)

A more accurate perpetrator of a “crime against sovereignty”? (Photo: Larry Downing/Reuters)

Seething with exceptionalism, the barrage of misguided arguments hits a crescendo as Rademaker implies that any actions taken by US officials or military personnel that are sanctioned by the government should be excluded from international prosecution:

The prospect of U.S. prosecutions of ICC and foreign law enforcement officials admittedly is an unsavory one. But it is no more unsavory than ongoing threats to prosecute Americans for actions undertaken by them pursuant to the constitution and laws of the United States to defend the nation.

Continue reading

Posted in International Criminal Court (ICC), United States | Tagged , | 3 Comments