Here Comes the Judge

Amidst his other pronouncements on Mideast peace in late May, President Obama warned Palestinians they couldn’t get their state by a show of hands at the United Nations. Soon after, Israeli officials predicted that the Palestinian Authority would pursue its case at the U.N. in September. It’s a safe bet that the Israeli government has a better understanding of Palestinian intentions than the Obama administration.

It’s true that the U.N. General Assembly doesn’t have the authority to settle border disputes or settle much of anything. Its resolutions are not, in themselves, binding formulations of international law. But a General Assembly resolution on Palestine will open some doors. Perhaps the most important is the door to the Office of the Prosecutor at the International Criminal Court. What happens after that door swings open won’t be a problem just for Israel.

Palestinians tried hard to convince the International Criminal Court (ICC) to indict Israeli military officials after the Gaza intervention last year. But the Rome Statute (as the treaty defining the court’s authority is called) limits its jurisdiction to cases involving “states,” but it does not limit itself to U.N. member states. Even if a U.S. veto on the Security Council keeps “Palestine” out of the U.N., a General Assembly resolution might encourage a substantial majority of the world’s governments to recognize “Palestine.” That would make it rather easy for the ICC prosecutor to treat “Palestine” as a “state.”

Still, it doesn’t follow that the court will be ready to prosecute Israeli military tactics. The court has jurisdiction only where the home state of the offenders is “unwilling or unable genuinely to carry out the investigation and prosecution” of alleged crimes. Even Judge Goldstone​—​of the notorious, eponymous U.N. report on abuses in Gaza​—​has acknowledged that Israeli authorities have been quite conscientious in investigating every allegation of abuse by the Israel Defense Forces. An ICC that intervenes against Israeli military tactics would be an ICC ready to question any army in the world​—​making nonsense of the original claim by ICC boosters that rule-of-law states would not likely be challenged by the Hague prosecutor.

There is, however, a particular provision in the Rome Statute that is​—​literally​—​tailor-made for indictments against Israelis. Article 8, Par. 2b, Clause viii extends the definition of “war crimes” to include “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory that it occupies.” The language was borrowed from the 1949 Geneva Convention on occupied territories, which included a condemnation of mass deportations of the sort conducted by Nazi Germany. The 1977 Additional Protocol I to the Geneva Conventions​—​negotiated as the U.N. was denouncing Zionism “as a form of racism”​—​tweaked the language to cover voluntary movement of civilians (“indirect transfer”), thus reaching Israeli settlement policies. The Rome Statute, negotiated in 1998, then elevated this prohibition to the status of a “war crime.”

Palestinian authorities may not be able to restrain themselves from goading the ICC to assert this jurisdiction. The State of Palestine does not even have to submit itself to the ICC’s jurisdiction over crimes that might be charged to Palestinians. Under Art. 12, Par. 3, a “State which is not a Party” to the ICC treaty “may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question”​—​a route that can be limited to specific crimes, such as “indirect transfer” of population into “occupied territories.” The court has no jurisdiction over “crimes” committed before 2002 (when the Rome Statute took effect), but the prosecutor is required to investigate subsequent offenses, if the initiating “state” so requests.

There would still be serious complications for the court​—​politically, if not legally. One is that the court would have great difficulty deciding such a case without taking responsibility for determining the actual borders of the State of Palestine. Taken literally, the “transfer” provision would cover even the Old City of Jerusalem, where Jews lived for centuries before they were expelled by Jordanian troops in 1948. It would be hard for the court to say Israeli settlement was acceptable in Jerusalem but not elsewhere​—​unless it wanted to declare some settlements in “occupied territory” and others within the lawful territory of Greater Israel. If it’s not going to make itself the ultimate arbiter of boundaries, including block-by-block demarcations in a redivided Jerusalem, the court may have to ratify the maximal claims of the Palestinians.

It’s true that a number of U.N. General Assembly resolutions in the past 30 years have called for an end to “Israeli occupation” and explicitly included “East Jerusalem” within the category of “occupied territory.” In response to a request from the General Assembly, the International Court of Justice (a different institution from the International Criminal Court) offered an “advisory opinion” in 2004, denouncing the Israeli security fence (which it called “the Wall in Palestine”) for running through “occupied territory,” which it identified as everything outside Israel before 1967. But these were not formal determinations after a full trial. Israel declined even to participate in the ICJ proceedings. And these pronouncements were not formally binding.

Which brings up a second difficulty with ICC proceedings on this issue. The ICC is not a mere forum for advocates. It is empowered to sentence convicted offenders to prison. It is not supposed to be doing that for mere technical infractions. The Rome Statute itself says the court’s jurisdiction “shall be limited to the most serious crimes of concern to the international community as a whole.” For such crimes, it makes sense that the statute requires all signatory states to assist in apprehending anyone indicted by the court. If the ICC prosecutor decides to act here, the named Israeli defendants will be subject to immediate arrest in any member state of the EU.

And then there is the ultimate difficulty. A prosecution for wrongful issuance of housing permits will be hard to portray as anything other than ganging up on Israel. No one, of course, has ever before been prosecuted for such an offense in the whole history of international law. That’s not because the issue of “transfer of population” has never before arisen.

A recent paper by Dana Brusca details prominent examples. For decades, since its 1974 military seizure of northern Cyprus, Turkey has encouraged Turkish nationals to resettle there, to beef up the Turkish population of the separatist state it has sponsored on the northern part of the island​—​which is not recognized by the international community. Over the last 30 years, well over a hundred thousand Moroccans were encouraged by their government to move into Western Sahara to bolster Moroccan claims in a post-colonial land dispute, first with neighboring Mauritania, then with a Saharan independence movement. Until it finally accepted the independence of East Timor in 2001, Indonesia tried to strengthen its own claims to this former Portuguese colony by encouraging Indonesian nationals to migrate there. Not only did the U.N. never suggest prosecutions in such cases, it allowed outside “settlers” to participate in referenda on subsequent status, acknowledging their claims to remain.

It is common practice at the United Nations to denounce Israel for “offenses” that pass without comment elsewhere. In 2005, Secretary General Kofi Annan cited the preoccupation of the U.N.’s Human Rights Commission with one country​—​Israel​—​as a principal rationale for reforming that body. In its first two years, the successor institution, the Human Rights Council, then devoted nearly 60 percent of its country-specific resolutions to condemning Israel. It was the council which demanded the Goldstone inquiry into Israeli abuses in Gaza, while turning a blind eye to ferocious tactics employed by the Sri Lankan military, where civilian casualties were at least 20 times greater than in Gaza (an estimated 20,000 in the last stages of the Sri Lankan conflict versus 300-900 civilian casualties in Gaza). After the Obama administration brought the United States back onto the Human Rights Council (which the Bush administration had shunned as hopeless), American diplomats tried to resist this obsessive focus on Israel. But in the past two years, the council has still devoted some 40 percent of its resolutions to denouncing one particular country. (Hint: not Libya​—​which was scheduled to be commended by the council for its human rights improvements as recently as February.)

The ICC was supposed to be different. It was supposed to be an institution that could be trusted to exercise the formidable power of prosecution. Governments were not to have direct say in its actions. What that means is that it is on autopilot. If the prosecutor decides to label Israeli officials as international outlaws, there is no mechanism for overturning the indictment. The U.N. Security Council is only empowered (under the ICC statute) to “defer” prosecutions for a year at a time​—​and even that requires the acquiescence of all five permanent members of the Security Council.

European governments have shown much more tolerance for the U.N. sport of Israel-bashing. The United States walked out of the Durban conference on racism in 2001 because of its obsessive focus on the “racism” perpetrated by Zionists. Both the United States and Canada refused to participate in the 2009 Durban review conference at which Iranian president Mahmoud Ahmadinejad was one of the featured speakers (and proceeded to deliver exactly the tirade against Zionist racism that his hosts must have expected). European governments still agreed to participate in bargaining over the official resolutions of these grotesque gatherings.

European governments seem to have thought the “indirect transfer” provision in the ICC statute was another accommodation to the priorities of the Islamic Conference. They may have supposed the provision was harmless, since Israel’s refusal to ratify the treaty would deprive the court of jurisdiction until an ultimate peace settlement, and the issue would then disappear with the ensuing peace. Now that the Palestinians have chosen a different sequence, that provision looks less like a harmless rhetorical indulgence and more like an improvised explosive device that may go off at any time. The European governments, which thought it worth having the ICC at almost any cost, now have to live with the risks.

It’s worth emphasizing that recognizing a Palestinian state does not, in itself, require European governments to support prosecution of Israeli officials at the ICC. The world is full of territorial disputes​—​think Russia and Japan regarding Sakhalin Island or India and Pakistan regarding Kashmir​—​which continue to be disputed while the parties maintain diplomatic relations with the rest of the world and even with each other. A new State of Palestine would depend on Israel to buy (as it now does) some 80 percent of Palestinian exports and to provide (as it now does) some 80 percent of Palestinian electricity. Israelis and Palestinians will have a lot of other things to talk about while they talk about ultimate borders.

The question is whether Euro-peans support an international prosecutor wading into this tense situation, handing down one-sided indictments for the “crime” of allowing civilians to live in disputed locations. Euro-peans insisted on pushing forward with the ICC, despite strenuous American warnings, even in the 1990s. If the ICC proves its potential for mischief, more than Israelis will be at risk.

The United States, after all, continues to worry about the ICC’s open-ended jurisdiction. Even the Obama administration, while emphasizing its desire to “engage” the ICC, has not expressed any interest in joining the ICC treaty. In the U.N. resolution authorizing the ICC to take jurisdiction over Libya, the United States insisted on language exempting nonparties (like the United States)​—​even while authorizing action against nonparty Libya. Europeans, as full members of the ICC, agreed to entrust their own forces to the prosecutor’s scrutiny. That may help to explain why NATO’s Libya strikes have been so restrained and the conflict so protracted.

If the court goes after Israel, it will be lowering itself to the demagoguery of other U.N. forums, playing to the Al Jazeera audience. If Europeans go along, that is sure to exacerbate strains in NATO. How could we engage in joint military operations with countries committed to satisfying ICC standards​—​when the ICC prosecutor shows himself eager to placate the suspicious, resentful majority in the General Assembly?

The aim of the Palestinian Authority, it seems, is to use the ICC to continue to undermine Israel’s international legitimacy. What may be more at risk is the legitimacy of the ICC itself​—​and ultimately of a NATO alliance, now awkwardly straddling the divide between ICC adherents and ICC skeptics. On this issue, the Obama administration really can’t try to lead from behind.

Jeremy Rabkin teaches public international law and the law of armed conflict at George Mason University Law School.