[Editor’s Note from Ryan Goodman: Starting with an excellent post by Professor David Luban on Palestine’s bid to join the International Criminal Court, Just Security published a series of exchanges from diverse viewpoints including by Professor Robert Howse (here and here), Yousef N. Zeidan, and Jonathan Somer. I invited a contribution from the former Chief Prosecutor of the ICC, Luis Moreno Ocampo and invited Professor Alan Dershowitz and others to contribute their views. I am grateful to Professor Dershowitz for agreeing to do so. Watch this space for more to follow, and see also Just Security‘s prior coverage of related issues.]

I have unbounded respect for my friend and colleague Luis Moreno Ocampo and I share his goal of resolving the Israel-Palestinian conflict by peaceful means.  His recent essay, “Palestine’s Two Cards: A Commitment to Legality and an invitation to stop crimes,” contains much wisdom and good will. But I must respectfully disagree with some of his premises and conclusions.  I welcome further discussion and debate on these important issues.

In 2012, Ocampo who was then the Chief Prosecutor of the International Criminal Court ruled correctly that “Palestine could not be recognized as a ‘State.’”  He now appears to agree with his successor’s conclusion that “Palestine could now join the Rome statute,” presumably as a state.  But how can an entity become a state, for purposes of joining the ICC, without boundaries?  The assumption seems to be that the pre-June 1967 armistice lines now constitute the de jure, if not the de facto, boundaries of the Palestinian state, despite the reality that even the Palestinian authority seems to understand that there will never be a return to those artificial boundaries.  If the Palestinian “state,” as accepted by the Rome statute, were to be defined by the pre-1967 truce lines, it would follow that the Western Wall and its plaza, Judaism’s most sacred area, is “occupied territory” and any Israeli who moved into that area would be a war criminal, as would Israeli leaders who allowed Israeli Jews to pray at this holy place.  The same would be true of Hebrew University, on Mt. Scopus, because its access road was captured by Jordan during Israel’s war of Independence and was thus not a de facto part of Israel before June of 1967.  Likewise with the Jewish quarter of Jerusalem, in which Jews have lived for thousands of years, but which was captured and viciously destroyed by Jordan during the 1948 war.  The same is true of Gilo, Ma’ale Adumin and other suburbs of Jerusalem, which Palestinian leaders have long acknowledged would remain part of Israel in any negotiated resolution, despite being beyond the Green Line. Moreover, land swaps, which will be part of any negotiated solution, would make some areas that are now part of pre-1967 Israel, part of a Palestinian State, and some areas that are now outside the Green Line, part of Israel.  These shifting boundaries pose an especially daunting problem in the context of Palestinian claims – which they have threatened to bring to the ICC –that it is a war crime to allow Israelis to live in occupied areas, when so many areas of alleged occupation are disputed, fluid and subject to future land swaps. Moreover resolution 242 of the Security Counsel contemplated that Israel would retain some – though how much was never decided – of the land it lawfully captured in the defensive war against Jordan in 1967.

These practical problems simply illustrate he difficulties of recognizing a “state” that has no agreed upon boundaries and whose ultimate borders will be shifting in the future if peace is to be achieved. It is not even clear whether the Palestinian state currently encompasses the Gaza Strip, which has not been contiguous with the West Bank since the U.N. proposed the division of what remained of British Mandatory Palestine after the creation of Jordan.  Gaza is now under the de facto control of Hamas, which is widely regarded as a terrorist group lacking any semblance of legality or any commitment to the Rule of Law. Would leaders of the Palestinians authority in the West Bank be held legally culpable for the terrorist acts of Hamas, even though they have no control over what occurs in Gaza?  Would Hamas military commanders be held accountable even if they refuse to recognize the authority of ICC over them?

In addition to the practical problems that would be posed by recognizing a “Palestine” without boundaries as a “state,” there are important technical and legal reasons why the recent symbolic actions of several parliaments and the UN General Assembly do not change the legal status of what was correctly deemed a non-state as recently as 2012.  There is space in this response for only the most cursory mention of these legal and technical reasons.  It is enough to say at this point that several of the “recognitions” adopted by national parliaments were not accepted by their government and were conditional on a negotiated resolution in the future.  So too the General Assembly’s recognition.  The issue of what constitutes a state involves more than symbolic, contingent, or aspirational votes designed more for domestic political considerations than serious diplomatic and legal consequences.

Beyond these practical and technical reasons for not recognizing Palestine at this time are the moral considerations.  Israel accepted, and the Palestinians rejected, the two-state solution in 1938 and 1948.  It offered land for peace in 1967, only to be greeted with the three “no’s”: no peace, no negotiation, and no recognition.  It offered generous proposals in 2000-01, 2008, and most recently in 2014, none of which was accepted.  To now reward this intransigence with unilateral recognition is both immoral and not conducive to a negotiated peace.  If the Palestinians believe they can secure unilateral recognition without negotiation and compromise, they will have less of an incentive to accept a negotiated, compromise resolution.

Moreover, regardless of Ocampo’s good faith belief that the Palestinian decision to bring Israeli leaders before the ICC “should not be construed as an assault on Israel,” that is surely how the Palestinian leadership construes it –as a sword of Damocles. And it is a weapon, because it seeks to create a false moral equivalence between a vibrant democracy that is governed by the rule of law; and a loose assortment of groups – Fatah, Hamas, Islamic Jihad, and others – that do not accept the results of elections, that murder dissenters with no semblance of due process, and that allow its official media organs to incite violence against civilians based on their religion.  It also seeks to create a false moral equivalence between an army that seeks to defend its civilians from rocket attacks, suicide bombers and terror tunnels; and a terrorist group that murders civilians in their beds, kidnaps and kill children, and targets civilians from behind human shields. I join my friend in hoping that “Palestine’s fully joining the Rome Statute as a state party is a commitment to legality and an invitation to stop and prevent the commissions of future crimes by any party” and that Palestine’s move “could be an opportunity to increase Israel’s security…” (emphasis added). But the reality is that even if “Palestine” – whatever that means in the context of Hamas’s control over Gaza, which is the source of most Palestinian war crimes – wanted to prevent future crimes, it lacks the ability to do so, since it does not control the groups that do not want to stop war crimes.

It is telling that Hamas has expressed satisfaction with the decision of ICC prosecutor to open an investigation of Israel’s military action during the recent war in Gaza. The hypocrisy of a terrorist group that boasts of its multiple war crimes expressing satisfaction that the victims of these war crimes are being investigated for trying to stop rocket and tunnel attacks, should be evident to any reasonable person.

More significant is the response of the U.S., which issued the following statement, “We strongly disagree with the ICC prosecutor’s action. The place to resolve the differences between the parties is through direct negotiation, not unilateral actions by either side.”

Ocampo acknowledges that the principle of “complementarity” precludes an ICC investigation of Israel unless “there are no genuine national investigations of the crimes committed under its jurisdiction.” I am intimately familiar with the Israeli legal system and its mechanisms for investigating alleged war crimes. There is no country in the world with a legal system that is more responsive to claims made by victims of war crimes.  At the apex of the Israeli legal system is its Supreme Court, which is widely admired by lawyers around the world. If it were to be ruled that the Israeli legal system does not provide the required complementarity to deny the ICC institution jurisdiction as “a court of last resort,” then no nation would pass that test. The United States will never, and should never, submit itself to the jurisdiction of an international court that does not regard the Israeli legal system as a satisfactory fulfillment of the principle of complementarity.

Finally, I agree with Ocampo’s alternative proposal:

“Israel could achieve an even bigger impact while avoiding the intervention of the Court by inviting Palestine to create a ‘bilateral fact-finding committee’ with experts representing all the parties to investigate alleged crimes committed by any party. This committee, which could also include international experts, could provide the evidence collected to Palestinian or Israeli Courts with jurisdiction over the case. I am not sure if the current state of the relations between the parties makes it feasible to develop such a common mechanism, but I am presenting it because I see its enormous advantages It would create a buffer between both parties and the ICC and it would foster a strong complementarity system for all the parties. Palestine and Israel could have a common position on the existence of genuine proceedings and the ICC would remain as an institution of last resort.”

I would be eager to work with my friend to help to achieve agreement creating such an alternative body of objective experts to resolve allegations of war crimes on both sides. It would be far better than allowing the ICC to place on trial the leaders of a vibrant democracy, with a responsive judiciary, and a moral army that does everything reasonable to minimize civilian casualties, while fighting a terrorist enemy that uses civilians to shield its illegal rockets and tunnels from appropriate military responses. Now that suggestion may truly further the quest for a peaceful resolution of this age-old conflict.