‘Hague Day’ brings into focus decisions by ICC that could have major ramifications for Israel

Non-involvement in cases concerning Kenya, Egypt, Libya indicate International Criminal Court might decide not to investigate Palestinian complaints against Jewish state, says legal expert.

By YONAH JEREMY BOB
ICC (photo credit: REUTERS)
ICC
(photo credit: REUTERS)
The Hague, which hosts the International Court of Justice, the Organization for the Prohibition of Chemical Weapons and, most importantly for Israel, the International Criminal Court, celebrated the UN’s International Day of Peace on Sunday.
Besides the above key UN bodies, The Hague is also the host of the International Criminal Tribunal for the former Yugoslavia and around 160 other international organizations, but recent Israel focus has been on the ICC, due to the possibility that the Palestinians may try to bring war crimes allegations against Israeli soldiers and decision-makers.
A significant portion of the celebration related to the ICC, including an unusual ICC open house.
The special attention brings into focus recent ICC decisions – especially dealing with Kenya, Egypt and Libya – that could impact the future of any Israeli-Palestinian legal conflict before the ICC.
On Friday, the ICC took one of the greatest risks since its founding, demanding that Kenya’s President Uhuru Kenyatta attend an ICC hearing to respond to allegations by the ICC prosecutor that he and his government are obstructing the war crimes case against him by refusing to provide evidentiary documents.
This was a massive risk, for if Kenyatta refuses to present himself to the ICC, most say this would seriously damage its perceived authority.
Many say that any such weakened authority could also reduce the ICC prosecutor’s appetite for taking on the Israeli-Palestinian conflict.
Because of this risk, the ICC had put off this issue for several months, and the issue came to a head only when the ICC ordered its prosecutor to either begin presenting evidence in the trial by September 5 or officially declare an inability to move forward without improved cooperation.
Besides the Kenya decision, a May decision by the ICC against former Egyptian president Mohamed Morsi is one that could impact Israel, international law commentator Prof. Eugene Kontorovich has noted.
Morsi had invoked the ICC to prosecute Egypt’s current rulers for toppling him and for alleged war crimes against him and his supporters.
The ICC prosecutor rejected his complaint, stating that, among other things, he did not have “effective control” of Egypt and therefore could not apply on behalf of Egypt.
According to Kontorovich, this same rationale could block “Palestine” from successfully getting the ICC to pursue Israelis, if only PA President Mahmoud Abbas fully excepts ICC jurisdiction, as he does not have “effective control” over Gaza.
In that case, since Hamas may fear ICC jurisdiction could lead to prosecution against it for indiscriminate rocket fire as war crimes, the ICC may reject any Palestine application as improper, said Kontorovich.
One last situation that could impact any ICC intervention between Israelis-Palestinians is Libya.
Libya has refused to hand over former Libyan leader Saif al-Islam Gaddafi to the ICC since it issued a warrant for his arrest on June 27, 2011.
It has refused on the grounds that it may prosecute him, though currently he is merely being held in prison, having had one court hearing, without any movement toward a full trial.
In other words, it has invoked the ICC’s complimentarity rule – that the ICC will not intervene if a country can and will prosecute an accused war criminal itself.
If the ICC has not pressured Libya to move along with a trial over three years after issuing an arrest warrant, many have argued that it is ultimately not likely to intervene in Israel, where Israel says that it does prosecute any Israeli who has committed a war crime.
All of these developments come on top of the ICC prosecutor’s recent unprecedented statement that she would not initiate an investigation on behalf of “Palestine” unless it fully joins the ICC’s Rome Statute, which still has not occurred.
While the UN’s International Day of Peace in The Hague is important to Israel mainly because of the focus on the ICC, the celebrations also involve music, debates, expositions, running events, tours, walks and much more.
The 20th century saw The Hague’s coming of age as an international city of peace and justice, with the International Court of Justice being the UN’s top judicial body.
In 1998 former UN secretary- general Boutros Boutros-Ghali described The Hague as “the legal capital of the world.”