Tuesday, April 03, 2012

A victory over lawfare

From NGO Monitor:
In a key defeat for NGO “lawfare” in the Arab-Israeli conflict, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) today decided that it does not have jurisdiction to begin an investigation over cases related to the 2008-09 Gaza War because “Palestine” is not a state. In January 2009, the Palestinian Authority (PA) filed a letter with the Court, purporting to accept the ICC’s jurisdiction in order to bring war crimes cases against Israeli officials, notes Jerusalem-based NGO Monitor, which was involved in the case from the outset.
“Throughout this process, the ICC – created to punish the worst perpetrators of war crimes and mass murder – was exploited by several EU- and European-government funded non-governmental organizations (NGOs), which intensively lobbied the OTP as part of their campaign to attack the legitimacy of the State of Israel,” says Anne Herzberg, legal advisor for NGO Monitor. “The NGOs Human Rights Watch, Amnesty International, Al Haq, the Palestinian Center for Human Rights, Federation Internationale des Ligues des Droits de l´Homme (FIDH), and Adalah campaigned at the ICC in support of the Palestinian Authority’s political goals. This clearly was contradictory to the spirit and substance of peace negotiations.”
On behalf of NGO Monitor, Herzberg submitted a legal brief on the case. The brief argued that the ICC’s jurisdiction is defined by the 1998 Rome Statute, which makes clear that only states can accept the Court’s jurisdiction. The Statute was adopted after years of careful diplomatic negotiations, and allowing the PA to fall under the Court’s jurisdiction would have essentially amounted to a re-writing of the Statute.  In addition, the brief argued that, contrary to claims by NGO proponents of the PA initiative, the ICC was not established as a court of universal jurisdiction, and NGO attempts to transform it into such would be legally improper. The OTP used similar arguments to support its decision.
“The fact that the case even proceeded this far was clear legal overreaching, but it shows the strength of NGOs that lead the de-legitimization and demonization campaigns against Israel,” adds Herzberg.  “The OTP’s decision today is a strong rebuke to these NGOs, their political agenda, and their campaign to isolate Israel from the international community,” notes Herzberg. “International arenas are routinely hijacked for political purposes, but today’s decision was markedly different.”
The original paperwork for this was filed over three years ago by the PA. It is amazing that it took three years for the ICC to determine the obvious fact that the PA does not represent a state. It is unfortunately not amazing that so many "human rights" organizations supported this attempt at lawfare.

NGO Monitor was not the only organization that submitted a paper opposing this instance of lawfare.  The European Center for Law and Justice filed a couple, including an answer to Al Haq's submission, as did Dore Gold, a group of American legal scholars, an association of Jewish lawyers, and others.

It appears that the anti-Israel groups were arguing that Palestine is a state and therefore any Israeli actions on its territory can be prosecuted by Palestine; if Palestine wishes it can give that authority to the ICC. Since they clearly cannot prosecute Israelis in Palestinian Arab courts, this is obviously a big stretch.

One point that still seems problematic is this paragraph from the ICC in an earlier letter to the UNHRC:

In accordance with Article 12 (2) (b) of the Statute, the Court may exercise its jurisdiction over alleged crimes committed by nationals of a State Party to the Statute. In this regard, South African lawyers have communicated to the Office information on alleged crimes committed in Gaza by individuals possessing South African nationality.
Does that mean that people can dual-citizens of Israel can be prosecuted by the ICC at the request of their other countries? I think it would have to be from a request from the nation itself, but that seems like something that people who wage lawfare would try to use next.

(Usual disclaimer - I am not a lawyer, nor do I play one on TV.)