Celebrating Pyrrhic victories

Three years after the Palestinians filed their original declaration to the International Criminal Court, accepting jurisdiction in an attempt to render the court competent for alleged Israeli crimes perpetrated in Gaza throughout Operation Cast Lead, the court’s prosecutor, Luis Moreno Ocampo, ruled recently that the court does not have jurisdiction because the Palestinians do not constitute a state entity.

Ocampo’s decision certainly returns law to its proper dimensions.

It comes on the heels a recent US Supreme Court judgment whereby federal courts were ordered to rule on whether “Israel” can appear as country of birth in the passport of a Jerusalem-born American citizen. In a sense, the Supreme Court correctly acknowledged that albeit some issues may have a disputed, political connotation, whose solution seems to lie only in heaven, they may also have a more earthly dimension tied to the simple application of existent legal rules.

The same is true for yesterday’s pronouncement. The Rome Statute, the Court’s constitutional map, permits only states to accept jurisdiction.

In international law, statehood means four things: people, land, effective control over a territory and sovereignty, most characteristically expressed in the ability to forge foreign relations with third parties. The Palestinians are a people and it can be argued that the ’67 armistice lines can form grosso modo their border lines, but it is very hard to see how they exercise control or sovereignty over this territory.

Indeed, it can be argued that Israel as the occupying power is hindering the exercise of Palestinian sovereignty.

Yet, because there has never been a Palestinian state and a legitimate government which can automatically exercise sovereignty once Israeli occupation ends, even if Israel withdraws from the Palestinian territories, still, it is not certain that the Palestinians will be able to fulfill the sovereignty requirement in a unifying way in both the Palestinian Authority-controlled West Bank and the Hamas-dominated Gaza.

Although the Palestinian Authority is the legitimate representative of the Palestinian people, only recently, Hamas Prime Minister Ismail Haniyeh paid state visits to Turkey, Iran and Egypt.

Given this, it is worrying that it took the prosecutor three whole years to reach the conclusion he reached. His reluctance for so long to just invoke the Statute’s state framework unjustifiably transformed the case from one entailing the application of international law to one referring to the law’s interpretation.

Thus, voices were raised among international academia calling for a functional, teleological reading of the Rome Statute, although international criminal law provisions are to be strictly construed.

The fact that the prosecutor in his final pronouncement did not align with these voices is fortunate. Yet damage was caused to international criminal law by the development of a whole interpretational enterprise that should not have ben sanctioned from the beginning.

Of course, the prosecutor’s hesitation can be understood. It seems he would have preferred last autumn’s Palestinian UN unilateral statehood bid to have succeeded, so that he could invoke it in asserting ICC jurisdiction. His decision renders this clear. Assertion of ICC jurisdiction is tied to Palestinian statehood and the latter to UN acceptance of Palestine as a “Non Member State” and not to the four aforementioned criteria.

From an international legal standpoint, this is deplorable, since it weakens the statehood doctrinal basis. Moreover, the fact that the “non member state” track is one that the Palestinian side is fondly thinking of and an option that requires only intervention of the UN General Assembly, where the Palestinians can achieve an overwhelming majority, render the prosecutor’s pronouncement a self-fulfilled prophesy.

As such, Ocampo’s decision constitutes a Pyrrhic victory not only for international law, but also for Israel’s supporters as well as those who concerned about “lawfare,” who have deplored the use of legal fora for political means. Israel’s Foreign Ministry has already opted to welcome the decision, expressing reservations at the same time.

But more importantly, the decision is a Pyrrhic victory also for the Palestinians.

Behind the euphoria of a possible future assertion of ICC jurisdiction, the opening of the Pandora’s Box of international criminal jurisdiction looms. In the realms of the never opened Gaza investigation, the prosecutor had already made clear that if jurisdiction was asserted, he would examine the conduct of both sides. Eventually, Palestinians not respecting the laws of war may equally with Israelis find themselves in the court’s docket.

The writer is a former member of the Knesset’s Legal Department, in charge of international and constitutional issues.