What an Honest UN Security Council Referral of ISIS to the ICC Would Look Like

An Islamic State militant (Photo: Reuters)

An Islamic State militant (Photo: Reuters)

There has been a lot of chatter on the internet about the need to refer the Islamic State or ISIS / IS / ISIL to the International Criminal Court (ICC). In fact, the subject has received so much attention that ICC Chief Prosecutor Fatou Bensouda felt compelled to issue a statement declaring that her office was unlikely to bring forward any prosecutions against ISIS militants unless Syria or Iraq were referred to the Court.

There is no doubt that accountability for atrocities committed by groups in Iraq and Syria would be a welcome development. The real question is how best to do so and, more specifically, whether referring a particular actor – rather than a state or a territorial situation – would help or hinder the pursuit of justice. In this context, even if there is a growing consensus that, one, ISIS atrocities should be prosecuted and, two, that the ICC is the best institution to achieve such an aim, there remain glaring problems with referring a group like ISIS to the Court. Many of these issues have already been raised elsewhere. In order to shake things up a bit, I thought it might be useful to draft what a truly honest UN Security Council referral of ISIS to the ICC would essentially have to look like once all of the political ingredients are factored in. So here we go:

The Security Council,

Expressing its outrage that a civil war in Syria has raged on for four years and has extinguished the lives of somewhere in the environs of 200,000 – 250,000 citizens, the vast majority of which are civilians,

Accepting that its permanent members have, collectively, done very little to stop the suffering – or even really accepted respectable numbers of refugees fleeing the carnage,

Mindful that at the same time, it is somewhat ironic that there’s a debate over whether our member-states should intervene in Syria given that all of us, especially the Permanent 5, have chosen sides and meddled in the conflict, pretty much since day one,

Acknowledging that, precisely because we’ve chosen opposing sides, we have previously failed to refer the situation in Syria to the International Criminal Court,

Stressing that some of us (really, all of us except the United Kingdom and France, most of the time at least) suffer from bouts of ambivalence towards the ICC,

Understanding that international criminal justice isn’t a silver bullet and, while it should probably be part of the equation in achieving peace, not everyone agrees that it should be mixed up with Security Council power politics,

Recalling that Article 16 of the Rome Statute allows us to (at least temporarily) pull the plug on any work we make the ICC do, Continue reading

Posted in ICC Prosecutor, International Criminal Court (ICC), Iraq, ISIS, Syria, UN Security Council | Tagged | 3 Comments

The ICC in Palestine: Changing the Narrative, Rattling the Status Quo

This is the third piece in our ongoing symposium on Palestine and the International Criminal Court. For all of the contributions, see our list here.

An Israeli security officer peers through a damaged part of the separation wall between Israel and Palestine (Photo: Abbas Momani / AF)

An Israeli security officer peers through a damaged part of the separation wall between Israel and Palestine (Photo: Abbas Momani / AF)

Before delving into how a potential intervention by the International Criminal Court (ICC) could affect the prospects for a sustainable peace between Israel and Palestine, it is important to warn against subscribing to either overly catastrophic or overly optimistic hypotheses that suggest that the ICC will either save or destroy the Middle East peace process. First, both hypothesis give the ICC a potency it simply does not have. The Court cannot – and never will be able to – single-handedly make or break peace. Second, while claims within the so-called “peace versus justice” debate may be intuitive, hard evidence of exactly how the ICC impacts peace processes across different contexts and types of conflicts remains thin. And third, Israel and Palestine are in what might be called a protracted negotiated state. ICC or no ICC, neither party has been able to achieve a solution to the conflict. But neither can they fully leave the negotiation table.

The question is thus not whether either side will all of a sudden leave or agree to everything because of an ICC intervention. Rather, the question should be: how can the Court shape the context in which the peace process is taking place?

My argument is simple. The primary effect of the ICC on conflicts is on the conflict narrative – the dominant understanding of the causes and dynamics of political violence. Any potential intervention by the Court should be seen as a means of changing or challenging the story of one of the most stubborn conflicts in the world. This story is what Noah Feldman has aptly called “the framing” through which we understand the peace process as well as Israel and Palestine’s role in the conflict.

Every conflict has a dominant narrative. It is what informs us of who is right and wrong; of who is responsible and who is a victim; of who needs to be held to account and for whom. Usually these narratives come in the form of a binary: one side is good, the other evil. To date, the conflicts in which the ICC has intervened have tended to have dominant conflict narratives. In northern Uganda, there is a broad consensus that the conflict is between an ‘evil’ LRA and a ‘good’ Government of Uganda. In Libya, there was a clear sense that the Court intervened in support of ‘good’ opposition forces against the ‘evil’ regime of Muammar Gaddafi .

Historically, the Israel-Palestine conflict has been presented with a severely asymmetrical narrative. In recent years, this has been challenged by the work of groups such as the UN Fact-Finding Mission which led to the 2009 Goldstone Report as well as the critical coverage of last year’s military operations in Gaza. But generally speaking and certainly in the West, Israel has been seen as the legitimate democratic ‘good’ side fighting against Palestine, often viewed as “Arab”, terrorist, and ‘bad’.

For Israel, as it is with all ‘good’ sides in conflicts, this perception is invaluable. It thus needs to be continuously cultivated and protected. It should thus come as no surprise that successive Israeli governments have invested heavily in, and have been remarkably good at, ensuring that this is the primary narrative of its conflict with Palestine. Internationally, this narrative is bolstered by the proscription of groups like Hamas and (previously) Fatah as terrorist groups. As a result, Israeli governments can portray Israel as a liberal democratic bastion against Palestinian aggression, justify continued occupation of Gaza, legitimize control of Palestine generally, and insist that periodic demonstrations of force in the occupied territories are necessary and legally permissible.

This vastly asymmetrical conflict narrative constitutes the very backdrop of the peace process. And this narrative can be seen in the official campaign against the ICC. According to Prime Minister Benjamin Netanyahu and Foreign Minister Avigdor Lieberman, by allowing Palestine to accede to the Rome Statute, the ICC is a sponsor of terror and doing work on behalf of terrorists. Moreover, if we’re to believe Netanyahu and Lieberman, the Court will unfairly target law-abiding Israeli officials and drag them to The Hague at the behest of terrorist groups. What officials won’t say is what everyone else has long known – that if the ICC did intervene it would almost certainly go after alleged crimes committed by Palestinian factions first.

But Netanyahu and other senior Israeli political figures cannot admit that the ICC would investigate Palestinian groups because that would, in a sense, put both Israel and Palestine on equal footing before the Court. In other words, to admit that both will be investigated risks suggesting that both have done something wrong, thus bringing a semblance of balance to a highly guarded asymmetrical narrative.

It is in this context, I believe, that Palestine’s decision to cede jurisdiction over its territory and its citizens to the ICC must be understood – as a means to level the conflict narrative. Here, it is important to note that, if Palestine does decide to refer itself to the ICC, it will mark the first ever referral and first potential ICC intervention prompted by the widely recognized ‘bad’ side of a conflict.

So, by shaping the dominant conflict narrative, can an ICC intervention positively affect the peace process? I think it can in at least three possible ways: Continue reading

Posted in Gaza, Human Rights, International Criminal Court (ICC), International Criminal Justice, International Law, Israel, Justice, Palestine, Palestine and ICC Symposium, Peace Negotiations, Peace Processes | 6 Comments

The ICC in Palestine: Be Careful What You Wish For

Kevin Jon Heller joins JiC for this second post in our symposium on Palestine and the International Criminal Court (ICC). Kevin surely needs no introduction to readers of JiC, but, just in case, he is a Professor of Criminal Law at SOAS, University of London and a contributor to Opinio Juris.

Palestine officially becomes a member-state of the ICC. Second Vice-President of the ICC Judge Kuniko Ozaki, President of the Assembly of States Parties H.E. Sidiki Kaba, and Palestinian Foreign Minister Dr. Riad. Al-Malki (Photo: ICC)

Palestine officially becomes a member-state of the ICC. Second Vice-President of the ICC Judge Kuniko Ozaki, President of the Assembly of States Parties H.E. Sidiki Kaba, and Palestinian Foreign Minister Dr. Riad. Al-Malki (Photo: ICC)

I want to start with a prediction, one I’ve made before and still subscribe to: the ICC will never open a formal investigation into the situation in Palestine. People of all political persuasions seem to think that the ICC is somehow eager to leap into the most politicised conflict of the modern era. I disagree, not because the situation doesn’t deserve to be investigated – I think it is one of the gravest situations in the world – but because I don’t think we take the ICC’s institutional interests into account nearly enough when we prognosticate about what it might do. And I see very little upside for the ICC in opening a formal investigation.

Why It Won’t…

My first concern is that the Office of the Prosecutor (OTP) simply does not have the resources necessary to investigate additional situations – particularly one as complex as Palestine. To say that the OTP is overstretched is a considerable understatement. So you have to ask: why would it spend its limited resources on the Palestine situation, as opposed to all the other non-African situations it has been monitoring for years? Public pronouncements notwithstanding, the OTP has shown very little desire to wade into situations where major superpowers are watching their behaviour. In Afghanistan, where the US is potentially subject to the Court’s jurisdiction, the preliminary examination is now in its 8th year. In Georgia, where Russia is obviously sitting on the sidelines, the preliminary examination is now in its 6th year. So the OTP knows full well how to slow-walk a preliminary examination into oblivion, and that seems to be precisely want it wants to do when superpowers are involved. And very few superpowers are neutral with regard to the situation in Palestine.

Then there is the cooperation issue. I think this is a very serious problem because Israel could easily prevent the OTP from effectively investigating Israeli crimes in Palestine, especially with regards to crimes in Gaza. Yet Israel would be more than happy to help the OTP investigate Hamas’s crimes. We have seen such asymmetrical cooperation from a variety of states – Exhibit A being Al Bashir, who has stonewalled the Court at every turn concerning members of his government (including him) but was more than happy to cooperate when the OTP decided to prosecute Abu Garda, the rebel leader, for masterminding the 2007 attack that killed 12 UN peacekeepers. “You want some tanks? You want some soldiers? We will happily escort you into Darfur…” There is thus a real danger of a formal investigation in Palestine becoming, de facto if not de jure, a one-sided investigation into Hamas. I think that would be very problematic for the ICC’s legitimacy – and represents yet another reason for the OTP to simply stay out of the conflict.

But If It Did…

To be sure, my predictions are not always right. So it is worth thinking about what would happen if the OTP did open a formal investigation. My political sympathies are very much with Palestine, but there are a number of reasons to suspect that a formal investigation would not turn out as well for the Palestinians as many people think. Most obviously, Hamas’s deliberate rocket attacks on civilians would be by far the easiest of all the crimes to prosecute in either Gaza or the West Bank. Not the gravest crime – but absolutely the easiest to prove in terms of its legal elements and evidentiary considerations. So I would be very surprised if the OTP’s initial charges were not against Hamas.

That said, there are clearly some Israeli crimes that would likely attract the Court’s attention. Operation Protective Edge involved deliberate attacks on Palestinian civilians and indiscriminate bombings of entire neighborhoods, such as Sujaiya. But most people seem to think that Israel is particularly vulnerable concerning disproportionate attacks. I don’t doubt that Israel launched many such attacks, but international criminal law (ICL) is not international humanitarian law (IHL). The war crime of launching an attack that causes excessive civilian damage requires a very specific mens rea (mental state); indeed, a violation of Art. 8(2)(b)(iv) – and I’ve written quite a bit about this – is one of the most difficult war crimes in the Rome Statute to prove. Under IHL, all you have to show is that a reasonable military commander would have recognized that the attack would be disproportionate. But if you are going to charge a commander with a war crime, you have to prove that the commander subjectively concluded that it would be disproportionate prior to launching the attack. So unless the IDF commander said to himself “there is absolutely no point to this attack, it’s going to kill dozens of civilians, but I’m going to do it anyway,” he would be entitled to an acquittal. So we cannot forget – particularly with regards to disproportionate attacks, but also with regards to other violations of the Rome Statute – that there is a difference between claiming that Israel committed crimes and proving them in court beyond a reasonable doubt.

Let me be clear: I am not saying that Hamas would be the only side prosecuted during a formal investigation into the situation in Palestine. I am simply pointing out that a rational prosecutor – and ICC Prosecutor Fatou Bensouda is very rational – would be very likely to go after Hamas first. Continue reading

Posted in Fatou Bensouda, ICC Prosecutor, International Criminal Court (ICC), International Law, Israel, Justice, Palestine, Palestine and ICC Symposium | Tagged | 13 Comments

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 | 3 Comments

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.

Contributions so far:

Chantal Meloni – On Palestine, International Law and the International Criminal Court

Kevin Jon Heller – The ICC in Palestine: Be Careful What You Wish For

Mark Kersten – The ICC in Palestine: Changing the Narrative, Rattling the Status Quo

Posted in International Criminal Court (ICC), International Law, Israel, JiC News, Justice, Palestine, Palestine and the ICC, Peace Negotiations, Peace Processes | Tagged | 4 Comments

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 , | 3 Comments