DAVENPORT: Palestinians eye a can of courtroom worms

OPINION:

One interesting question raised by the Palestinian statehood initiative at the United Nations is how this will affect the role of the International Criminal Court (ICC) in skirmishes between the Israelis and the Palestinians in Gaza and in other conflict zones. Some assert that triggering ICC prosecutions of Israeli soldiers and government officials for war crimes is a primary motive behind Palestine’s push for statehood. But as is often the case in the Middle East, things are more complicated than they appear.

The Palestinian Authority has been pounding on the ICC prosecutors door since January 2009, trying in vain to trigger an investigation into Israel’s alleged war crimes and crimes against humanity during “Operation Cast Lead” in December 2008. The prosecutor of the ICC initially responded that, because Israel is not a party to the court and the Palestinian Authority is not a state, he had no jurisdiction to investigate. But a few weeks later, he reconsidered, and said he would look more carefully at whether the PA might have enough earmarks of a state to bring an ICC claim.

Following an almost bizarre process, the prosecutor has now been thinking about this question for more than 2 1/2 years. He invited briefs and memoranda on the question, many of which he posted online; he held a forum in which the matter was debated (what prosecutor hosts in-house salons to decide whether to bring a case?); and still no decision. What does that tell us? It may tell us this presents complex policy questions but as a legal matter, his first impression that there is no jurisdiction seems obviously right. More likely it tells us this is a political can of worms that he would like to kick down the road until his term ends next year.

Criminal courts are not proper venues to sort out thorny political, diplomatic, military and strategic questions that characterize the decades-long conflict between Israel and the Palestinians in Gaza and other conflict zones. Criminal judges simply do not have the background and expertise to handle such questions, and empowering an independent prosecutor to run around the world turning conflicts into criminal charges does not serve anyone.

Meanwhile, back at the U.N., it appears the United States is prepared to veto actual statehood for the Palestinians at the Security Council, so that “observer statehood” from the General Assembly is the most likely outcome. Can an “observer state” of the U.N. accede to the Treaty of Rome, which created the ICC, and therefore bring a matter before the prosecutor for investigation? And who decides that? These questions are more difficult than they may seem.

It appears that U.N. officials are already running for cover when such questions are asked. Secretary-General Ban Ki-moon has declined to state his position on the matter, though there are unconfirmed reports that he has sought a legal opinion that he would not need to make that decision. Another U.N. official has reportedly said that the secretary-general should accept a request from an “observer state” to join a treaty on file with the U.N., assuming the Palestinians will surely make one. If it takes a prosecutor two or three years to decide whether a nonstate might have jurisdiction to bring a complaint to the ICC, imagine how long this U.N. dance might go on.

Further, the Treaty of Rome is clear that the court does not have retroactive jurisdiction, so a new state party could not bring a matter from the past (Operation Cast Lead in 2008-09) before the court. So even joining the ICC would not enable the Palestinians to bring a matter to the court immediately. And then there are still very difficult territorial questions that would should be resolved - for example, who actually “controls” Gaza? Further complicating matters, the U.N. Security Council has the power both to initiate and to halt an ICC case. Would the United States try to protect Israel from ICC prosecution through the Security Council? Could it get a majority of council votes to accomplish that? As a new party to the court, would the Palestinians investigate their own alleged war crimes and crimes against humanity?

All this underscores the importance of settling statehood through a diplomatic process, not through appeals to U.N. bureaucrats and criminal courts, where the end result is unanswered questions and unintended consequences.

David Davenport is a research fellow at the Hoover Institution.