Thursday, May 22, 2014

Israel has little to fear from the International Criminal Court

The ICC’s former chief prosecutor says the Palestinians wouldn’t have much of a case against Israel.


Anshel Pfeffer | May 20, 2014 

In the dysfunctional state of Israeli-Palestinian relations, the “nuclear option” for the Palestinians would be joining the International Criminal Court as a member state and exercising that membership to launch war crimes investigations against Israel. At least, that’s the view of many in Israel, which, like the United States, is not a member of the ICC.

But to judge by comments made by the ICC’s former chief prosecutor, Luis Moreno-Ocampo — who, even two years after leaving his post in The Hague, remains the controversial court’s most persuasive advocate — Israel has little to worry about. 

Last week, on his first visit to Israel, Moreno-Ocampo was full of praise for the local legal system and eager to point out that joining the ICC could backfire for the Palestinians. “Being here in Israel is not liking talking about international justice in Boston or Sweden,” said Moreno-Ocampo, who was here as a guest of the Fried-Gal Transitional Justice Initiative at the Hebrew University of Jerusalem’s law school. “The issues here are not academic.”

But he isn’t at all sure that if the Palestinian Authority were to join the ICC — or if Israel were to join, for that matter — the international court would actually play an active role in the conflict.

The ICC’s job is to investigate and prosecute only in cases in which the local legal system is not performing. “In a dictatorship they can make you disappear and kill you,” said Moreno-Ocampo. “But here, even if the situation is awful, you cannot disappear; you have the rule of law.”

He is wary of being yet another foreigner who “comes here and says I can solve your problems.” Saying Israel has “great lawyers here,” the former chief prosecutor said if Israel’s Supreme Court could find a way to win the Palestinians’ trust, perhaps it could adjudicate claims the Palestinians want to bring before the ICC. For the ICC to rule on Israel’s activities, he said, “the Palestinians have to prove that the [Israeli court’s] decision was to shield the defendants. They would have to prove that it wasn’t a fair proceeding.”

Moreno-Ocampo rejected a Palestinian request that the ICC launch a war crimes investigation against Israel after its May 2010 raid on a Gaza-bound flotilla, which ended in the deaths of nine Turkish nationals. “I told them that I can’t offer you success because you are not considered a state,” the former chief prosecutor recalled. “First go to the United Nations and when they recognize you, come back.”

The Palestinian Authority did go to the United Nations, and its status has since been upgraded to non-member observer state, making it eligible to join the court. All the same, Moreno-Ocampo said ICC membership could be a double-edged sword for the Palestinians, since it would also open them up to investigation for alleged war crimes, such as rocket fire and bombings targeting Israeli civilians.

“The ICC could help the Palestinians, but it could also increase the conflict,” said Moreno-Ocampo. “And the Palestinians should ask themselves how they would do it, because if you want to include everything since 2002 [when the ICC was established], that could include things done by the Palestinians. Another alternative is to start from 2015, not investigate past events and now that Hamas is part of the government, that would prevent them from committing more crimes.” 

Moreno-Ocampo’s warnings may seem strange to those who see the ICC as an interventionist organization of busybodies, but he doesn’t see the international court as an institution that should necessarily be conducting many global investigations.

The former chief prosecutor is certain the ICC’s impact will be felt over decades, not necessarily because of the cases that actually go through the court but because it is drawing a line between war crimes that can only be prosecuted by an international forum and cases that will be increasingly dealt with by the countries where the war crimes took place.

“Law enforcement is national, but acts of terror need global investigations,” said Moreno-Ocampo. “We’re living in a new age when people under 25 from Argentina, Italy and Russia are communicating around the world with each other and are very similar. This is the global community which will demand common standards.” The best outcome of for the ICC, he said, is that “there will be zero cases. That is the best because it means we are having an effect. The law is not for judges; it’s for people.”

The success of the ICC, maintains Moreno-Ocampo, should not be measured by the number of its successful prosecutions, but by the change its very existence is making in the way governments investigate their own security forces. He is certain that even the Israel Defense Forces “changed its orders just because of the ICC.”  

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