A just dilemma

Does the International Criminal Court have anything to offer Israel?

icc hague 248 88 (photo credit: Courtesy)
icc hague 248 88
(photo credit: Courtesy)
It is an image many Israelis would relish: Ismail Haniyeh, Gaza's Hamas prime minister, standing in the dock of an international court, charged with war crimes and possibly incitement to commit genocide. Whether it will happen is another matter altogether. To bring these charges against Haniyeh, he would have to stand trial in The Hague, and Israel would have to join the International Criminal Court. But neither appears to be on the horizon. The International Criminal Court (ICC) came into being on July 1, 2002, after its July 1998 Rome Statute had been ratified by 60 nations. Today the treaty has been signed by 139 nations and 107 of them have ratified it and officially joined the ICC. The ICC is the latest attempt by the international community to obtain justice for victims of horrific crimes. The statute's preamble notes the ICC is "mindful that during [the 20th] century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity." It adds that the ICC is "determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes." On July 14, 2008, ICC prosecutor Luis Moreno-Ocampo submitted a report requesting Sudan's President Omar Hassan al-Bashir be charged with genocide, war crimes and crimes against humanity. This, along with the ICC's other cases, would serve as an indicator of its attempts to achieve justice for voiceless victims - something that should resonate strongly with a Jewish state whose revival sprang partially from the Holocaust. However, Israel voted against the Rome Statute and is therefore not a party to these attempts to punish today's perpetrators of genocide. Judge Eli Nathan, the head of Israel's delegation to the Rome Conference, said at its conclusion that the decision caused him "considerable pain, both personally as a victim of the Nazi persecution of the Jewish people and on behalf of the Israeli delegation." At the time, the Israeli delegation expressed a number of concerns. The primary one was that the ability of the prosecutor to launch independent investigations into the possible commission of crimes meant the ICC could be used for political purposes - and specifically a witch-hunt against Israeli political and military leaders. Another objection was the last-minute inclusion, at the behest of Egypt, of a war crime of transfer of population from an occupying power into occupied territory, a direct attempt to criminalize Israeli settlement activity. Furthermore, the fact that judges are elected based on UN regional groups, and Israel does not have appropriate membership of any such group, means that no Israeli is eligible to serve as a judge. Finally, terrorism was not included on the ICC's list of crimes - which include genocide, crimes against humanity, war crimes and the yet undefined crime of aggression, which the ICC cannot prosecute until it is defined. Israel did promise to continuously monitor the ICC's progress and reassess its decision. Ten years have elapsed since that statement and the ICC has been operating for six, giving Israel ample opportunity to make such an assessment. So how should Israel judge the ICC? TODAY, THERE are more than 800 individuals working in The Hague at the ICC in an attempt to bring justice to parts of the world where there is none. In the Democratic Republic of the Congo, more than 4.5 million people have died since 1998 in conflicts between rebel warlords and the government. The prosecution's charges, on crimes committed since the formation of the ICC in July 2002, have largely been about the use of child soldiers. When militia leader Thomas Lubanga was transferred to the ICC in March 2006, prosecutor Ocampo warned that "forcing children to be killers jeopardizes the future of mankind." The other crimes the prosecution is looking into are equally horrific and their condemnation is near universal. In northern Uganda, the ICC's attempts to bring Joseph Kony and other leaders of the rebel group Lord's Resistance Army before the court would end the impunity of individuals who for 20 years have been at the forefront of a campaign that has killed 200,000, displaced 1.5 million and abducted tens of thousands of children to serve as soldiers or sex slaves. The ICC's newest "situation" is in the Central African Republic. Already one suspect, rebel leader Jean-Pierre Bemba Gombo, is in detention. In announcing his decision to open an investigation, the prosecutor stated that information led him to believe that "rape of civilians was committed in numbers that cannot be ignored by international law." The ICC is also looking into the situation in Darfur, regarded by many as the first genocide of the 21st century. Here, two arrest warrants have been issued. Ahmed Harun, who headed Sudan's Darfur Security Desk, and Ali Kushayb, a leader of the Janjaweed militia, have been charged with 51 counts of war crimes and crimes against humanity for their part in a campaign that has killed more than 300,000 and displaced 3 million. If an arrest warrant is issued against Bashir, it will be the first time the ICC has charged a head of state and the first time it has issued the charge of genocide. ISRAEL'S TRIAL of Adolf Eichmann in 1961 highlighted its determination that, as the Rome Statute proclaims, accountability must trump impunity, and played a major role in the evolution of international criminal law. Yet the ICC presents Israel with a dilemma: How to approach a court that after six years has not directly addressed its initial concerns, yet also has not given any indication that an investigation into Israeli military conduct - which is possible under the Rome Statute even though Israel is not a party to the court - is on the horizon? The biggest fear has always been that of an Israeli defendant. But according to Prof. William A. Schabas, director of the Irish Center for Human Rights at the National University of Ireland and an expert on the ICC, "Judging by the way the court has operated in the last five or six years, I think Israel should be reassured that its fears are not really well-founded." Schabas is referring to the fact that the prosecutor's attention has focused on non-state actors responsible for egregious human rights violations even in instances where government action is also questionable. For Yoram Shachar, a law professor at Herzliya's Interdisciplinary Center (IDC), this is proof that Israel should be placing more faith in the ICC to be a non-politicized institution focused on clear instances of violations of international law. "Has the prosecutor gone completely off or behaved irresponsibly in the way some have predicted? The answer is absolutely not," Shachar said. Shachar believes Israel's reluctance to join the ICC places it at a disadvantage when combating terrorism. "We can behave strategically and wisely and use international law to our own advantage. Hamas is, by its own literature, committing international crimes," he said, referring to the crime of incitement to commit genocide, which the ICC recognizes. There is also an argument that though the Rome Statute does not include the crime of terrorism, its provisions for war crimes can be made to apply. There are provisions for war crimes committed in the course of international and non-international armed conflict. Specific charges include willful killing, intentionally targeting civilian populations or individual civilians taking no active part in hostilities, and "murder of all kinds." "Hamas has been committing classic war crimes, not terror, but war crimes. If Hamas carries out war crimes within the Green Line, then they come under jurisdiction of the court if Israel joins the treaty," Shachar said. The fact that Israel refuses to employ the resources of the ICC to combat terror is, to Shachar, "a sign of weakness rather than a sign of wisdom." Schabas notes that every country that joins the ICC accepts some risk, but for him the real question is what will be the effect on that country's enemies. In the case of Israel, he believes the answer is clear. "Will it do more for its enemies in terms of harm than it could do for Israel? I think the answer is yes." However, a senior legal adviser in the Foreign Ministry indicated that the country's original concerns are still relevant and that a change of policy is not on the horizon. There is still concern over the issue of Israeli defendants. And there is dismay that terrorism, even large-scale terrorism, is still not recognized by the ICC as a crime. "Israelis can be arrested for defending themselves against acts of terror, but the terrorist cannot be charged," he said. He also pointed to attempts to use international law against Israel as proof that the international legal arena is slanted against its interests. For instance, he cited the 2004 ruling against the security barrier by the International Court of Justice and repeated attempts to bring Israelis to trial in foreign countries under the auspices of universal jurisdiction for international crimes. "This is not the environment where Israel's concerns about politicization have been assuaged," he said. YET ADVOCATES for the ICC like Schabas and Shachar note that even if an environment is politically charged, and beside looking at the prosecutor's track record, the structure of the ICC is such that Israel's fears are unfounded. First, a situation can only come to the attention of the ICC in one of three ways. The first is for a member state to refer a situation. Since Israel is highly unlikely, especially given the robust nature of its judiciary, to self-refer a situation, this is not a concern. The second is for the prosecutor to initiate an investigation on his own. Again, as supporters of the ICC point out, the ICC's track record indicates this is not likely. (In another sign that Ocampo does not bow to political pressure, in February 2006 he released a statement to the effect that, contrary to the wishes of "numerous citizens and organizations," he would not be launching an investigation into potential abuses committed in Iraq.) The final way for a case to come before the ICC is for the UN Security Council to refer the matter - as was the case with Darfur. However, according to Shachar, "Israel faces no risk of referral" as long as the US maintains veto power over any such referral as a member of the Security Council. Schabas and Shachar also point to the fact that the ICC is not a retroactive institution. This means that it has no jurisdiction to look into alleged crimes committed before July 1, 2002. Therefore, since events human rights advocates often cite as instances of war crimes, like Operation Defensive Shield or the IDF operation in Jenin, took place before that date, they could not be investigated by the ICC. They also note that this effectively terminates any chance that an Israeli can be charged with the war crime of transfer of a population of an occupying power into occupied territory since the crime requires the act of "transferring" and the vast majority of settlement activity took place before the ICC came into effect. However, the Foreign Ministry adviser pointed to continued construction in east Jerusalem, and the ability of Arab states to enact a "plain reading" of the clause outlawing "transfer of population," as potential "grounds for prosecution." Furthermore, the adviser said, the government's position is that Israel already has in place domestic legal provisions to deal with the commission of war crimes by its nationals. The adviser asserted that this satisfies a core feature of the ICC, called "complementarity," which refers to the notion that the ICC is meant to be complementary to domestic judicial systems and only intervenes when a state is either unable or unwilling to bring a matter before its courts. (Supporters of the ICC, however, counter that the existence of Israel's own legal frameworks do not obviate the need for the international court, which would step in only when domestic legal avenues are unwilling or unable to provide adequate resort.) The adviser reiterated the government's position that "the test is not whether Israel ratifies the statute [of the ICC]. The test, rather, is whether the crimes [covered] under the statute of the court are prosecuted [by Israel's domestic legal hierarchy] or not." EVEN IF Israel's fears about joining the ICC are well-ground, and sufficient domestic judicial safeguards exist, some experts say there is a moral reason why the Jewish nation must join the ICC. Prof. Natan Lerner, also of IDC, for one, calls Israel's unwillingness to join "a moral lapse on our part." "States cannot only take into account political expediency; they must take into account higher principles," said Lerner. "We might be taking a risk in joining, but it's a worthy risk. We want an international community that fights genocide and similar crimes. If we want it, we have to be a part of it," he added. In 2005, Harvard professor and Darfur advocate Samantha Power visited Darfur. She asked many people she met if there was one place in the world they would go to if they could choose. Many answered The Hague. Power explained, "I wouldn't say they knew about the ICC. What they knew was that there was this thing called 'The Hague,' a place where bad people were sent, and where over the course of recent years people [who had suffered like them] had had the ability to go and testify."