Faithful readers of IP will remember an event called Operation Cast Lead. This was a three week attack by Israeli military forces on Gaza, in which over 1400 persons died, a substantial percentage of whom were civilians, and as part of which many businesses and utilities and housing and such were also destroyed.
Some of you may also recall that a request was made by the various entities including the Palestinian government for the institution of a criminal investigation by the International Criminal Court of this event on the grounds that it was a violation of various bits of international law.
On Tuesday, the Prosecutor of the International Criminal Court in a story widely reported in Israel including here annouced that he was not going forward because Palestine was not a State, and therefore could not ask an action to be commenced. Although he conceded that Palestine had been recognized bilaterally by 130 or so states, his stated notion was that unless and until the UN so recognized it, as perhaps a 'non member state' but not a mere 'observer', he could not proceed because the Rome Statute, of 1998, the treaty which created the International Criminal Court did not define a "State" and he did not have the authority to create that definition and determine that his definition applied to Palestine or not, by himself.
According to the Israeli reporting, this was an effort hard achieved by the Israeli government, according to the Israeli government.
It seems a good time for a short introduction to the International Criminal Court, and some of its ideosyncrasies, according to the Rome Statute, 1998. Those of you who don't like reading turgid legal procedure are going to have a hard time of this one. But a surprising number of us according to our anectotal comments seem to believe that it's as easy to get horrendous problems to the ICC and get them adjudicated as it is to file a complaint here in Federal Court. It isn't. And this situation demonstrates why, not only for IP but for many other things progressives think have easy to obtain remedies there not available because whoever we don't like is too lazy to get them there where they belong.
There are, first of all, two sorts of entities which are relevant as to most matters ICC. One of them is 'signatories,' the various countries who originally signed the Rome Statute, which included the United States and Israel. The second category, which now has many more members, is that of "State Party," the functional term for all those nations who have in fact formally ratified and bound themselves to the treaty and not just signed it, including those States who in order to raise an issue for the ICC have made a particular agreement acceding to the treaty by which it becomes both binding upon or available to them, although they were not so before. My understanding from the reading is that Palestine has attempted to invoke this procedure, but thusfar without success.
Please recall that the USA has consistently since 2002 when the treaty became effective, refused to become a State Party, and so has Israel, who signed but withdrew in 2007, along with Russia, China and some others. At the time of signing, Bill Clinton said he had serious reservations about it and would not be presenting the treaty to the Senate without revisions, so this is not merely or solely a Bush issue.
However, having signed the Treaty, the US and Israel and other who did not become or resigned from being State Parties, are apparently still bound because a 1967 treaty done in Vienna concerning treaties indicates that those who sign a treaty though not State Parties under it are committing not to undermine or undercut the stated purposes of the treaty they signed and whose signatures were part of what it took for the signed treaty to go into effect.
There are preconditions to being able to bring a matter before the ICC and its servant the Prosecutor, listed in Article 12 of the Rome Statute other than through the Security Council which may refer what it chooses to the Prosecutor if it believes one or more of the various crimes listed apparently has been committed, without reference to whodunit. In the case of something referred by the Prosecutor or a State Party, there are additional limitations, namely that (a) A State Party or a state which has acceded to the Statute by joining up later is the location of the offending conduct, counting flag vessels and aircraft as a part of the State, or (b) if the doers were nationals of a State Party or an acceding state. What this means is that actions done by those not nationals of a State Party/acceding State or not occurring within the territory of a State Party,acceding state can only be referred to the ICC/Prosecutor by the UN Security Council.
Once the preconditions are met, there are basically three ways a matter believed to be an international crime of certain sorts, there being a lengthy definition in the early sections of the treaty posted here for your reference, can be commenced according to Article 13 of the Rome Statute. The legal term for what can be commenced and who can do it is referred to in the press articles as 'jurisdiction' but might also be called standing. The UN Security Council can at any time do that and has done so in at least three instances, of which Rwanda was one and Libya was another. Second, a State Party or acceding state can ask under Article 14, , and third the Prosecutor can himself begin one under Article 15. Other than the belief that a proper crime has been committed, both the Prosecutor and the State Party,acceding state initiating the proceeding may go forward without the initiating State Party/acceding state being involved in the matter, or the Prosecutor having to base his investigation on any particular source at all, as long as the preconditions are met.
The major difference between the three forms is that essentially and supposedly the second and third are limited to those where there is a State Party involved by either its nationals being the doers or its territory being the location, , so that a dispute among two entities neither of which is a State or acceding party, can only be begun by the Security Council. While one expects over time that this will be tested, there have not until now been so many attempts to invoke jurisdiction that were in dispute in this particular fashion. Israel is not a State Party, and thusfar Palestine is not, according to the prosecutor, a state at all, so there is in his official and public mind nothing he can do to help. However, nothing in Article 15, the article under which the Prosecutor may act makes no mention of any act by any particular as being a precondition to the Prosecutor acting himself as to a particular event. Only that it need be on a proper instigation.
It goes without saying that the ICC's jurisdiction as to the time when the offending events happened begins when it was created, so nothing before 2002 can be heard. Other enforcement provisions under other treaties generally have the same starting date restriction, but with different start dates. There is no remedy in ICC for whatever the Turks did during and after WWI, or anything that happened in the Israeli War of Independence/Nakba. Cast Lead, on the other hand. . . .
One last relevant provision is something added to meet to some degree US objections, which is a provision which will by Security Council resolution defer an investigation or proceeding for twelve months, renewable, upon passage of a particular sort of resolution based on Chapter VII of the UN Charter.
There are also provisions allowing deferral to a State involved in the acts charged as crimes if it can demonstrate that its legal justice system can do justice in good faith to the adjudication of the crimes itself. Those of us who dealt with Mavi Marmara will be familiar with this problem in IP, but it is not a problem limited to Israel by any means.
And there is no statute of limitations save for events prior to 2002.
Procedures and such are determined by an Assembly of State Parties, with some matters requring a two thirds vote of all State Parties/acceding states, and procedures by majority vote.
One matter which should be noted here at once is that the US has an extremely hostile position to the ICC as concerns its governmental folk, military or not. It will not agree to any of these provisions unless its own troops and other folk are exempt. It will not participate in peace keeping unless its people are exempt. It has passed a series of statutes which provide that no US citizen can be taken to an ICC proceeding without its agreement, that it will use military force if some other country hauls its citizens to the Hague to appear there in court, and has entered into various bilateral agreements with other nations that those other nations, one of whom is Israel, will not assist the ICC in obtaining control over any American citizen wthout the US government's consent. In at least one case, others attempted to bring US officials and troops before the ICC owing to the invasion of Iraq and what happened there, which didn't make the ICC look better to the US, but the Prosecutor decided that this was not the sort of crimes, because sporadic and incidental, for which the ICC was created and rejected them. The reporting is also that the US insisted on confirming that the veto of permanent members of the Security Council remain applicable to any referrals to ICC at the time the treaty was negotiated, but that did not happen, and the rolling twelve month deferral was the compromise at the time the Bosnia matter had to be extended in time, which the US was blocking until it got what it wanted.
So where does that leave IP, other than below the not so great orange squiggle.
First of all, I do believe that what the Prosecutor did was duck the issue and punted. He can, and he or his predecessors have investigated various IP matters, but the formal matter of launching the ICC investigation-indictment process is not something he is prepared to get into, BUT not on the grounds of the preconditions. If he wanted to be literal and clear, and dispose of the matter, he would have invoked the preconditions, none of which is, as to him, that the complainant has to be a state. Rather than come up with this not-treaty-based objection.
As most IP followers know, there is a serious problem with States here, since Israel is not a State Party by its own act in 2007, and Palestine is in limbo and likely to remain there, although recognized by 130 recognized states, particularly Gaza since Israel at least claims both for external purposes that it is not part of Israel and not occupied either, and for internal purposes perhaps that it is part of greater Ancient Israel, but not as important as Judea and Samaria east of the Green Line. No settlers are trying to move into Gaza.
I don't know that the UN even has a status called a 'nonmember State,' but the demand for Statehood recognized under a definition that does not exist is a kind of legal Hail Mary. He may perhaps be fishing for another State to make the same complaint and announcing this as the means to instigate that if any other State is serious enough about this to do it, Arab League members or Iran for example. Or for the Security Council and the General Assembly either to correct the treaty, which has seven year review periods, or to get on with figuring out the status issue in some manner that works with his actual brief. It will be remembered that in Rwanda, the state was not complaining, and that in the recent Human Rights Council investigation of the Sri Lankan civil war, the complainants pushing the investigation were not Sri Lankans.
The second half of the issue is the IDF troops which executed Cast Lead and are threatening another one. They did what they did in a place Israel argues endlessly is not a state of any kind, much less a State Party, or an acceding state and is certainly not part of Israel, for treaty purposes anyway. And they are nationals of a place not itself a State Party or acceding state either, at this point. They could have invoked the conditions, but they apparently didn't on that ground either. They certainly did not get this ruling on either such ground.
Part of the reason the Israeli government can take this position is that for reasons unrelated to them, but much related to protecting Dick Cheney and a few others (Kissinger was before 2002), and a lot of American troops, they are in an excellent position to support the US position. Remembering just how many dual nationality American/Israeli nationals are involved in IP and many of whom have been IDF troops at one time or another, proudly. One does not know if their own commitment not to give American citizens to the ICC without US consent is not a reciprocal promise, that is, given in light of a similar promise as to Israeli nationals not to be given over without the consent of Israel, which will no more be forthcoming than the US consent will.
And I suggest it was no accident that no US troops were used, much less put into legal danger in the many ways listed in the Rome Statute, in the recent military process in Libya, every last one of them safely out of contact with the sort of situations listed as within the jurisdiction of the ICC, even though it also got the UN blessing on that action before it began.
Presumably the purpose of the Prosecutor doing what he did and Israel doing what it is doing, is to keep Palestine from ever being able to become an acceding state, or for Palestine to change its UN application from 'member state' to whatever 'nonmenber state' is. There are more graceful ways to float such possible compromises.
This also reminds us that way back in the weeds of the IP 'peace' negotiations, one of the matters Israel was pushing the US to push for, not the most publicized, was a provision in that deal that all thinks Israeli would by treaty be exempted from any Palestinian charges about their conduct addressed to ICC. I have never seen the twenty points Israel put forward in Amman in January, but somehow I wonder if this is among them.
Comments on the above welcomed, under my usual rules. You know those rules.