Who's afraid of the big bad ICC?

Today, in the New York Times, George Bisharat says that "Palestine" should take Israel to the International Criminal Court in the Hague:

LAST week, the Palestinian foreign minister, Riad Malki, declared that if Israel persisted in its plans to build settlements in the currently vacant area known as E-1, which lies between Palestinian East Jerusalem and the Israeli settlement of Maale Adumim, “we will be going to the I.C.C.,” referring to the International Criminal Court. “We have no choice,” he added.

No doubt, Israel is most worried about the possibility of criminal prosecutions for its settlements policy. Israeli bluster notwithstanding, there is no doubt that Jewish settlements in the West Bank, including East Jerusalem, are illegal. Israeli officials have known this since 1967, when Theodor Meron, then legal counsel to the Israeli Foreign Ministry and later president of the International Criminal Tribunal for the former Yugoslavia, wrote to one of Prime Minister Levi Eshkol’s aides: “My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention.”

Under the founding statute of the I.C.C., grave violations of the Geneva Conventions, including civilian settlements in occupied territories, are considered war crimes.

Bisharat doesn't know what he is talking about.

Eugene Kontorovich, the international legal expert I have mentioned in the past, makes these points:

1) The ICC can only act when the home state refuses to investigate crimes; that is not the case for any Israeli acts in Gaza or the territories.

2) ICC has never prosecuted a case referred by a country against nationals of a non-member state. Such an action would terrify US officials and permanently sour American relations with the Court, as it would expose U.S. military and civilian officials to liability for U.S. armed action anywhere in the world, and particularly for the controversial drone strikes program of President Obama.

3) The ICC has never even considered taking a case that does not involve killing and personal violence; a settlements suit would be far outside the kind of things they've dealt with in the past.

4) The relevant actions would have to be on the territory of Palestine, which is a problem since they do not have defined territory, and most of what the op-ed talks about precedes their nominal statehood, so that would be out of bounds.

5) The ICC would also have jurisdiction over all Palestinian war crimes.

Beyond that, the ICC only has jurisdiction on very specific categories of crimes: Genocide, crimes against humanity, war crimes and "the crime of aggression." The Rome Statute says that it will not prosecute the "aggression" category until it is defined; as far as the other categories are concerned, it only includes "grave breaches" of the Fourth Geneva Conventions, which does not include voluntary transfer of citizens who are not "protected persons" under Geneva.

Furthermore, the ICC has indicated that it does not subscribe the very loose definition of "war crimes" that so-called human rights activists apply to Israel. As Evelyn Gordon wrote last month in Commentary:

In a verdict ironically issued just as the world was obsessing over Palestinian civilians killed in the latest Hamas-Israel war, the court essentially upheld, in a Balkan context, all the arguments Israel routinely makes about the legitimacy of its own military operations. Consequently, the judges acquitted and freed two Croatian generals whom a trial court had convicted of war crimes and sentenced to 18 and 24 years, respectively.

The appellate court’s first important move was acknowledging the obvious fact that in wartime even the most careful army makes mistakes. The trial court had convicted the Croats of illegally shelling four towns they were trying to capture. The appeals court said the lower court’s criterion–“that any shell that landed more than 200 meters away from a military target must have been fired indiscriminately–was arbitrary and ‘devoid of any specific reasoning’,” to quote The Guardian’s apt summary. In short, it accepted the fact that soldiers are human beings who make mistakes, and errant shells don’t necessarily mean the soldiers fired indiscriminately.

Second, it acknowledged the obvious fact that even the most careful army can’t prevent civilian casualties. Some 150 civilians died in the generals’ four-day bombing campaign. But the appeals court said these deaths didn’t constitute war crimes, because the troops had aimed at legitimate military targets. In other words, it ruled that civilian casualties aren’t ipso facto illegal; they may be unavoidable consequences of legitimate military activity–especially when military targets are located in crowded urban areas.

Third, it acknowledged that even when genuine war crimes occur, they may be the acts of errant individuals rather than deliberate policy: It concluded that acts of looting and murder following the bombing campaign occurred not on the generals’ orders, but despite them.

Finally, it acknowledged the obvious fact that fleeing a war zone is normal, so a civilian exodus isn’t necessarily proof of a campaign of ethnic cleansing.

In short, the court recognized a simple truth that “human rights” activists try hard to obscure: War is always hell, but not every act of war is a war crime.

In other words, the ICC threat is more a bogeyman than something to be legitimately feared.

But the threat to go to the ICC does prove something - that the Palestinian Arab leaders are not interested in negotiations of any type. They are going to hitch their wagon, as always, on having the international community pressure Israel rather than open themselves up to the possibility of compromise.

Which shows how serious they are about really wanting a free, independent state.