Playing Game of Chicken Over ICC ‘War Crimes’
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J.J. Goldberg January 1, 2015
Palestinian leader Mahmoud Abbas may have opened the door to his government’s joining the International Criminal Court on New Year’s Eve when he signed the Rome Statute, the 2002 treaty that created the court. But that doesn’t make the Palestinian Authority — or the State of Palestine, as the United Nations now calls it — a member of the court. Not yet, anyway.
The road from signing the treaty to hauling Israelis before the court on war crimes charges — the road from Rome to The Hague, as Ynet’s Elior Levy put it — is still long and complicated. Abbas has flexed some muscles and shown his people some moxie, but he hasn’t yet declared judicial war on Israel, and it’s not entirely clear that he can — or even that he wants to.
What he’s been doing, it appears, is building, slowly, step by step, a legal-diplomatic edifice that may eventually make that possible. But he still has some hurdles to cross. And there are still opportunities for Jerusalem and Washington to stop the process. His end goal is not getting Israelis thrown in jail, but getting them out of his people’s lives.
If Abbas’s State of Palestine were to be accepted as member-state of the court, it would be entitled to bring charges of war crimes perpetrated against it. At first glance Israel might not seem to be vulnerable, because the rules of the court only apply to countries that are members. Israel is not a member. However, the court specifically allows member-states to bring charges over crimes committed on their territory, even if the alleged perpetrator wasn’t a member-state.
The whole tactic of going to the court carries high risks for Abbas and his allies. He heads up a government that includes the terrorist Hamas, with its long record of intentional, bloody attacks on civilians that unambiguously constitute war crimes. Palestinian leaders might find themselves more vulnerable to prosecution than Israelis.
What could Israel be charged with? The obvious charges involve the large-scale death and property destruction wreaked on Gaza during the three wars against Hamas over the past six years. There are disputes about the proportion of civilians among the dead, but no one questions that there were a lot of them. But it’s not at all clear that those deaths, horrific as they are, would be indictable as war crimes.
Israel is often accused of using disproportionate force since so many more Palestinians were killed than Israelis. But that’s not how proportionality is defined in the laws of war.
In judging whether or not given killings are legal under the laws of war (a grotesque concept in itself, but that’s for another day) the legal question is whether they’re disproportionate — not to the other side’s losses, but to the legitimate military objectives being pursued. Since Hamas had hidden its rocket launchers among and beneath residential neighborhoods as well as next to schools and hospitals, it was impossible for Israel to destroy the enemy weapons without hurting civilians. Hamas’s tactics forced Israel to take actions that hurt it badly in global public opinion, but it’s highly unlikely that a reasonable court — and no one has yet called the international court unreasonable — would find them illegal.
Israel would be far more vulnerable to war crimes charges for its settlement policies. Many friends of Israel find it ludicrous that building apartment houses could be considered a war crime, but international law is pretty unambiguous on the question.The legal text is the Fourth Geneva Convention, the international treaty adopted in 1949 in response to the Nazi atrocities. According to Article 49 of the convention, a nation that occupies another nation’s territory in the course of war may not “deport or transfer part of its own civilian population into the territory it occupies.”
Note that there’s noting illegal about one nation occupying another nation’s territory in the course of war. That’s what happens in war. The Fourth Geneva Convention defines how the occupied territory and its population must be treated during the course of the occupation. It says nothing about the fact of occupation itself except that it happens in war. So all the talk you hear about Israel’s “illegal occupation” is simply ignorant. An argument can be made that Israel illegally violates certain of its obligations as the occupying power. That’s what the court case will be about, if it ever reaches the court.
As to violating the rules, Israel has long made the argument that the Fourth Geneva Convention doesn’t apply to its occupation of the West Bank and Gaza. The reason is that the convention explicitly defines itself (in Article 2) as covering “all cases of partial or total occupation of the territory of a High Contracting Party” — that is, occupation of territory belonging to a state that’s signed the convention. The disputed Palestinian territories that Israel captured in 1967 didn’t belong to contracting parties, or to anybody else. The West Bank and Gaza were assigned by the U.N. in the 1947 partition plan to the Palestinian state that never came into being. The West Bank was captured during the war by Jordan and annexed in an action that no other nation recognized (except Britain and Pakistan). Gaza was captured by Egypt and was still under Egyptian military occupation when Israel captured it in 1967. Thus, Israel maintains, it isn’t occupying the territory of a High Contracting Party, and so the rules of the convention don’t apply.
(Some Israelis and allies take that argument to mean that the West Bank and Gaza aren’t occupied. That’s just silly. Israel itself doesn’t consider them part of the state of Israel and doesn’t apply Israeli law there. They’re governed by the Israeli military, not the Israeli interior ministry, and in most cases Jordanian law is still in force. Israel’s position is that they don’t fit into the category of occupied territory as defined by the Geneva Convention, but it doesn’t deny that they’re under military rule, which is to say, occupied.)
Now, Israel’s claim that the Geneva Convention doesn’t apply to its occupation of the West Bank and Gaza seems incontestable under the plain language of Article 2. Unfortunately, there isn’t a single nation in the world that accepts Israel’s reading, despite the plain language of the convention. That’s why the settlements in the territories have been described over and over by countries around the world as illegal.
Who’s right? Is the law what the law says it is, or is it what the rest of the world wants it to be? It’s a fascinating question, and it’s never been brought before any competent tribunal to be resolved. It might be interesting to see it argued out before a real court of international law.
But that won’t happen even if the Palestinians manage to bring their case to court. The Rome Statute, under which the court operates, separates its definition of war crimes (in Article 8) into two separate categories. One is “Grave breaches of the Geneva Conventions,” defined as eight specific types of violations including “wilful killing,” torture, hostage-taking and similar violence.
The other is “Other serious violations of the laws and customs applicable in international armed conflict.” It’s there, in Paragraph 8 of that second section, that the statute forbids “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.” Thus the Rome Statute separates the ban on civilian settlements in occupied territories from the language of the Fourth Geneva Convention. Israel’s argument about the language of the convention is nullified before it even gets to court.
The question is, will it get to court? Jerusalem and Washington have been hurling some rather colorful threats Abbas’s way in the day since he signed the document. There’s talk in Washington of cutting aid to the Palestinian Authority and in Jerusalem of withholding tax revenues that Israel collects on the authority’s behalf. Israel’s done that before when it wanted to punish the Palestinians. The result has always been to cause privation among the Palestinian population, increasing hostility and belligerence toward Israel rather than decreasing it.
Israeli intelligence minister Yuval Steinitz, who’s sometimes considered close to Netanyahu, has been urging that the Palestinian Authority be dismantled. That would put the Israei military directly in charge of the West Bank’s 2.5 million Palestinians, responsible for everything from mail service and garbage collection to health, education and welfare. The immediate cost to the Israeli taxpayer would be an estimated $2.7 billion per year, serious money for Israel’s $348 billion budget.
And that’s just the beginning. It would caused roiling unrest, increase violence while eliminating any chance of security cooperation on the Palestinian side, throw Israel’s growing international isolation into high gear. And once dismantled, there’s scant chance of it being reassembled. Some Israelis would welcome it puts the territory under direct Israeli control and accelerates the movement toward annexation into a single state. Most Israelis would find that they had been subjected to worse punishment than the Palestinians.
The question Israel should ask itself right now is whether it’s worth it to respond quickly and forcefully. How badly can it be hurt by the Palestinian court bid?
The answer is, that won’t be clear for a while. There’s time to wait, watch and consider alternatives.
A state that signs the treaty must wait 60 days before it’s entitled to come before the court and swear out a complaint against an alleged war criminal. The Palestinian case could be a bit more complicated, though. It’s not clear that the court will consider them a state. To be more precise, the court’s official position as of today is that they’re not a state. It’s not clear whether the court, for all its pretensions of being above politics, will want to change that.
The court prosecutor’s office has ruled twice that Palestine is not a state under the rules of the court, which only allows member-states to file actions. The first time was in April 2012. That was in response to a 2009 effort by the Palestinian minister of justice to bring charges against Israel because of settlement activity. The Office of the Prosecutor decided that Palestinian statehood had to be recognized by “the relevant bodies of the United Nations or the Assembly of States Parties,” referring to the annual meeting of the court’s 122 member-states.
Seven months later, in November 2012, the U.N. General Assembly voted in to recognize Palestine as a non-member observer state. One year later, in November 2013, the prosecutor’s office reported that the vote “does not cure the legal invalidity” of the Palestinian court action. It said that “whether an applicant constitutes a ‘State’ for the purpose of treaty accession” depends on whether it has deposited an “instrument of accession” — a signed treaty — with the U.N. secretary-general.
A year and a half after that, in April 2014, Abbas signed 13 treaties in Ramallah and handed them to Secretary-General Ban Ki-moon at a ceremony in New York. Theoretically, then, the prosector’s office could now consider the matter closed. If and when Abbas hands this latest signature to Ban, the office could simply call Palestinian membership a done deal. Or it might duck again, as it’s done twice before, and throw up another barrier, such as requiring that Ban issue a special ruling on Palestine and the court. If that happens, Ban might simply issue the ruling, given that he’s already accepted a stack of Palestinian signatures. Or he might bow to American pressure, as he’s done countless times before, and claim that it’s up to the court to decide who is and isn’t a member.
That would kick it over to the next annual Assembly of States Parties. Or sooner, if the Palestinians round up one-third of the court’s members to demand a special meeting.
The United States doesn’t get to attend those States Parties meetings because it’s not a member of the court. But it could get a few good friends like Canada and Australia to show up and kick up a fuss. All this might not block Palestinian membership. But it could delay it. It would push consideration of Palestinian membership past Israel’s March 17 election.
This is an international game of chicken. The stakes are high not just for Israel and the Palestinians but for the International Criminal Court as well. Twelve years after its founding it has looked into just nine crisis zones, indicted a grand total of 36 individuals, completed 11 trials and won two convictions. More than one-third of the world’s nations still refuse to accept the court’s jurisdiction. A major embarrassment now, taking on a cause and a case it can’t win, would deal it a terrible blow.
The alternative would be for Israel to turn all these lemons into a lemonade: Announce that it accepts the Arab Peace Initiative in principle, as one nation after another demanded in the Security Council debate the other day. Ask for Washington, Cairo and Riyadh to convene a regional peace conference with the initiative as a frame of reference, as much of Israel’s political system and most of its security leadership has fruitlessly urged. Make suspension of any further movement toward the criminal court as Israel’s precondition for moving forward.
This Israeli government isn’t likely to do that. It will do everything it can between now and March to convince voters that they need to return it to office to resist the Palestinians. If the opposition finds a way to show that Israel has an alternative to its growing isolation, perhaps this whole discussion can become moot.
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