Show sidebar

The Establishment of the International Criminal Tribunal for Palestine (Part II)

I ended Part I of this series yesterday by arguing that the Palestinians’ dualistic bid to join the International Criminal Court (ICC) amounts to lawfare, in that they are not motivated by ideals of international justice. Instead, they are trying to get the best possible political deal for themselves in joining the court with hopes of enjoying the maximum benefits to be gained from membership. “I am not saying anything is necessarily wrong with that type of strategy, but we should understand it for what it is. And we should understand invocations of “the law” in some of the surrounding commentary as a mask for politics and rhetoric.

To dial down idealistic claims or to double down, that is the question

To readers who are utterly unsurprised by the dating of the ad hoc declaration I would simply add – likewise. It’s an example illustrating the strategic nature of the Palestinian multilateral maneuvering, which is squarely within their prerogative, acting as any other self-interested political entity would. But then maybe we should dial down the discourse depicting this as an idealistically motivated move – striking a blow for international criminal justice, or placing a conflict under the umbrella of law – and come to terms with the fact that the Palestinians are practicing lawfare by any other name, even at the expense of the values supposedly guiding their march to the ICC. 

As an aside, I note that even in sequencing the bifurcated bid (declaring and acceding) the Palestinians are attempting to strategically squeeze through a legal loophole: it’s highly doubtful whether Article 11(2) of the Rome Statute allows States parties to use ad hoc declarations in order to extend backwards the ICC’s jurisdiction. To avoid forfeiting this option, the Palestinians (who are apparently avid readers of the international legal blogosphere) followed an advice tendered in the comments section to Kevin Jon Heller’s post over at Opinio Juris, and lodged the declaration a day before they submitted the instrument of accession. Again, nothing too legally novel or politically astonishing here – simply a case in point, I believe, for Palestinian savviness – that can’t be misconstrued as an effort to utilize the ICC as a confidence building measure.

Ocampo too expressly recognizes the tactical implications of certain twists and turns. For instance, when he mentions the Palestinian “option, as a full-fledged state party” to make a referral under RS Article 14 and “thereby reducing the involvement of the judges in the opening of an investigation and cutting Israel’s options.” In my reading, this highlights the dismal disparity between the legal-political reality of the situation and Ocampo’s overarching vision, heralding Palestinian accession in the name of both justice and peace (hence doubling down on idealism). Ocampo’s post opens with a promise for a “thorough and sober analysis,” and proceeds to advise Israel to “take a realistic approach.” But in the same breath he entertains the notion of a “bilateral fact-finding committee” to investigate alleged crimes by both sides while admitting he’s unsure “if the current state of the relations between the parties makes it feasible.” Ocampo is painfully unaware how much of an understatement this is: nowadays Israeli and Palestinian pathologists are unable to reach mutually agreed findings regarding the cause of death of a single Palestinian protester. To make matters worse, in praising the Palestinians for excluding the events of the previous decade from the ICC’s jurisdiction, Ocampo evidently overlooks that by the very same token an imbalanced and prejudicial procedural posture is being set up. Such settings are all but guaranteed to extinguish any Israeli forthcomingness – which is admittedly very scant to begin with (but isn’t that all the more reason not to give the Israeli government additional excuses?) Such a biased set up only renders the proceedings all the more legally and politically fraught.

What I find far more disconcerting is the manner in which Ocampo’s political fiction straddles the law. The Palestinian accession to the RS, he claims, will usher in a new era in which “[a]ll the parties involved have to adjust to a new legal framework” [emphasis added]. Presumably, Ocampo is referring to the added institutional value of monitoring rather than to a change in the substantive norms – but this could just as easily be read as him casually supplanting the ex ante, universally applicable rules of customary International Humanitarian Law (IHL) with the ex post, controvertible rules of International Criminal Law (ICL). Ocampo accompanies this with an attempted fundamental functional flip, turning the ICC from a locus of hard law and its powerful enforcement to a venue of soft political persuasion, with law playing second fiddle.

It is one thing for Ocampo to portray the Palestinian accession to the ICC as “commitment and invitation,” or to optimistically predict it will bring about “an enormous improvement” as well as ultimately “reduce tensions and avoid further escalation.” (While readers should take this assessment with a grain of salt, far be it for me to deny any potential role for the ICC in promoting Israeli-Palestinian reconciliation and peaceful coexistence.) It is something quite different, however, to proffer the ICC as a plausible platform of political negotiations. Bringing together alleged victims and perpetrators to hammer out a viable, long-term, and all-encompassing settlement “in the shadow of the court” is neither part nor parcel of international criminal proceedings, as evidenced by the experience of the ICTY and ICTR. Even if the lofty ideals of transitional justice could be transposed and harnessed to this effort, it’s quite unreasonable to think that the Israeli-Palestinian conflict – with its rivers of bad blood, Gordian knot of grievances, and a long line of madly frustrated mediators – could ever be amenable to such an unusual approach. Conversely, it seems that the driving hope for Palestinians and their empathizers clamoring for ‘Justice for Palestine’ at the ICC is that of hard-nosed Israeli accountability. Arguably, once Israeli public and politicians feel the full brunt of International Criminal Law, cementing their isolation and helping seal a pariah-state fate, they could be pressured into compromise and compliance at the negotiating table.

To realize the depth of the dissonance one only needs to consider a point raised in Luban’s and Van Schaack’s respective posts. The Oslo Accords’ provisions (Article XVII and Annex IV of the 1995 Interim Agreement) explicitly bar Palestinian penal jurisdiction over Israelis; how can the Palestinians confer onto the ICC powers they’re bereft of? This highly complex question can’t be addressed here (and interestingly, this issue was rarely visited in the voluminous briefs submitted to the ICC, either supporting or opposing the 2009 Palestinian ad hoc declaration). Suffice it to say that while the Oslo Accords seem to erect a towering bulwark against ICC jurisdiction, they’re neither unassailable nor uncircumventable, and therefore shouldn’t be thought of as an Israeli trump card. At the same time, when plotting out the diverse routes for resolving this matter in favor of the “Palestinian side,” you discover that each of the available inroads is more perplexing and precarious than the other. By day’s end, you come to conclude that there’s virtually no way to successfully navigate the Palestinian case through this jurisdictional minefield and leave the highly fragile Oslo framework intact. Tampering with the Oslo Accords might inadvertently severely undercut what little remains of Israeli-Palestinian cooperation. Some might think this is inevitable, and it certainly appears to coincide with Palestinian rhetoric – that is, President Mahmoud Abbas’s routine threats to dismantle the PA. Yet this is nevertheless a course of action that both Israelis and Palestinians have clearly been reluctant to pursue so far. Pushing the conflict over this edge is fully in line with the reasoning of using the big legal stick of the ICC to beat Israel into political submission – but I simply fail to see how it can be even remotely helpful for resuming Israeli-Palestinian talks, under the auspices of the ICC, as per the Ocampo peace plan.

Future happening in The Hague

Appreciated in its entirety, Ocampo’s contribution forcefully demonstrates the daunting divide between law and rhetoric. Coming from the former ICC chief prosecutor, such remarks should deeply discomfort anyone concerned about the prospects of ICL and the ICC. They also attest to the exceedingly entrepreneurial state of mind of international lawyers turned global policymakers, for whom law gradually becomes a thin veil for rhetoric. Such behavior threatens to see the law eventually discarded and left by the political wayside.

One can only speculate how much farther law and rhetoric can drift apart in this case. To me, the most probable answer is “a lot.” As mentioned, all of these doctrinal conundrums pertain to whether the ICC has jurisdiction, which the ICC prosecutor will tackle first. If the Palestinian position on jurisdiction prevails, the really messy part will then begin – the examination of admissibility, where the chief prosecutor will need to:

(a) Develop a comprehensive legal theory of the Israeli-Palestinian conflict, including on questions of classification, scope, parties and applicable rules. Hopefully, this will be done more accurately, meticulously, and persuasively than in the recent flotilla decision;

(b) Set the overall legal standards for genuine investigations of alleged IHL violations. This is another big, contentious issue of late, reportedly being fleshed out in the context of the Libya situation, that has yet to be implemented in a situation even remotely similar to that of Israel; and

(c) Apply (a) and (b) to each and every one of the numerous specific allegations, which, notwithstanding any temporal jurisdiction limit, are expected to persistently pile on the ICC chief prosecutor’s desk in the coming years.

Before concluding, an important clarification is in order: international lawyers are political animals. Firstly in the way all people are, secondly in the way all lawyers are, and thirdly because they professionally partake in political decision-making, in the most controversial, charged, and combustible arena of inter-State diplomacy and national security. In that arena, there is no decisive decoupling of law and politics, but there is delicate disentangling to be done, and its current form among some international lawyers leaves much to be desired.

The first level of extrication is discerning between various types of “policy considerations.” On the one hand are policy considerations pertaining to the international lawyer’s institutional environment and normative framework. On the other hand are considerations going to the heart of the concrete case and the broader policy questions it raises with respect to efficacy, prudence, and, to some extent, justice. Therefore, ICC’s current Chief Prosecutor, Fatou Bensouda, should care a great deal about whether her office (in terms of resources and capacities) and the court (in terms legitimacy and competencies) can truly withstand the Israeli-Palestinian situation. She should also ask how, and if, the RS and ICL at large can fare on this test – i.e., on the doctrinal trials and tribulations this Middle-Eastern adventure will summon – and what does all that spell for future crimes and victims. To be sure, this array of policy considerations is incredibly dense, with numerous items on both sides of the lawyer’s ledger. Consider, for instance, the claim that the ICC’s legitimacy is already compromised by its focus on Africa, so that arraigning “white defendants” offers reputational reward, not only risk. But as thick and thorny as all this is, there’s no comparing it with the insoluble quandary that former prosecutor Ocampo is primarily concerned with – how to achieve regional peace and security. This is not just a question for Bensouda: other actors in the international community need to grapple with it, and hopefully they’re better equipped for the task.

The second level of differentiation is more problematic and cannot be exhausted in a one-size-fits-all formulation. It stems from the fact that international norms and institutions are not devised for their own sake – but to enshrine, promote, and protect our shared communal values. Accordingly, the ICC chief prosecutor is by no means a “technocrat.” In addition to all of the above-mentioned instrumental policy considerations, she is also vested with the immensely intrinsic interests of (criminal) justice, and must therefore ensure they are best served within in her sphere of control – she’s even required to do so formally (RS Article 53). This also holds true, in essence, for less prominent international lawyers, such as UN legal advisers, whose work I lamented above. The policy preferences and goals of the UN Secretariat, theoretically guided by the collective will of the UN Member States, are entrusted to the legal advisers in joint custody with other international civil service professionals. When these legal advisers interpret and apply international law they are tasked with supporting these policy choices as far as legally permissible and practicable.

This conceptual circularity can’t be avoided, and to prevent it from looping us all the way back to conjoined-twinning law and rhetoric, (some) international lawyers have to take the body of law – doctrine, structure, and logic – much more seriously. When politics and policy-makers predetermine a destination, such as bringing the Palestinians as close to statehood as the UN Security Council will let them – international lawyers must be extremely vigilant in prescribing the parameters (instead of ignoring the law of treaties). When the desired policy/politics outcome impinges on legal questions – such as in the case of the ICC jurisdiction and the Oslo Accords – international lawyers must verify that their politically informed opinions are not prejudging and sacrificing the law in the name of an ideal du jour.

Irrespective of what some readers might think given my professional and personal background, this post doesn’t purport to deploy any “scare tactics.” Readers would note I haven’t even raised the specter of “court politicization,” and the preceding paragraphs should make clear why I don’t consider this to be a real issue. Along similar lines, I think – albeit with very different attitude and bottom-line – Alex Whiting (posting at Lawfare) predicts that the ICC chief prosecutor “will likely adopt a cautious and slow approach,” although the latter “is not only pragmatic. There is a strong (and proper) adherence to the principle within the Office.” I believe this encapsulates the problem this post tried to unpack: for Whiting, these are “competing impulses,” where “pragmatism” stands for (some of) the instrumental policy considerations I detailed above, and “the principle” is “to apply the law consistently and uniformly.” For me, there should be no real competition here. That is unless a politically-mandated outcome is being legally crafted, in which case there’s no real legal principle in play – which is exactly what I suspect to be transpiring in the specific context of the Israeli-Palestinian conflict and the ICC.

I won’t venture a guess with respect to the effect that all of the above, if it comes to pass, will have on the Israeli-Palestinian conflict. However, in the vein of law and rhetoric, I dare leave you with this estimate: if the ICC immerses itself in this tumultuous, terribly complex, and tragic state of affairs, the international community will look back at this time as the moment when the ICC became the ICTP – the International Criminal Tribunal for Palestine. Like other international institutions before it, the ICC will soon be helplessly addicted to and completely preoccupied by this one situation, in terms of prosecutorial and judicial resources, political capital, and, of course, the law. This post tried to show how the law has been plastered-over during this process, time and again, on so many levels, with what appears to be the diametrical opposite of rigor. In response, some readers might say – ‘well, considering Israel’s actions over the last fifty years and up to present day, this simply means criminal justice is also poetic justice.’ Perhaps, but that doesn’t mean that any type of justice – criminal, poetic, or political – will result from transforming the Israeli-Palestinian conflict into a permanent courtroom drama. I certainly don’t think that the ICC becoming involved in the Israeli-Palestinian conflict is outside the realm of possibility, legally speaking. Whether and how the ICC should do so are other questions altogether. Yet they are very much in the court of international lawyers, who must resist the temptation to relinquish these questions to oblivious policymakers and/or vapid political rhetoric; there’s simply too much at stake.

Tags: , , , , ,


About the Author

J.S.D. Candidate at New York University School of Law, Former Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations