In the dysfunctional state of Israeli-Palestinian relations, the “nuclear option” for the Palestinians would be joining the International Criminal Court as a member state and exercising that membership to launch war crimes investigations against Israel. At least, that’s the view of many in Israel, which, like the United States, is not a member of the ICC.Eugene Kontorovich, in an essay in NRO last year, expands on this:
But to judge by comments made by the ICC’s former chief prosecutor, Luis Moreno-Ocampo — who, even two years after leaving his post in The Hague, remains the controversial court’s most persuasive advocate — Israel has little to worry about.
Last week, on his first visit to Israel, Moreno-Ocampo was full of praise for the local legal system and eager to point out that joining the ICC could backfire for the Palestinians. “Being here in Israel is not liking talking about international justice in Boston or Sweden,” said Moreno-Ocampo, who was here as a guest of the Fried-Gal Transitional Justice Initiative at the Hebrew University of Jerusalem’s law school. “The issues here are not academic.”
But he isn’t at all sure that if the Palestinian Authority were to join the ICC — or if Israel were to join, for that matter — the international court would actually play an active role in the conflict.
The ICC’s job is to investigate and prosecute only in cases in which the local legal system is not performing. “In a dictatorship they can make you disappear and kill you,” said Moreno-Ocampo. “But here, even if the situation is awful, you cannot disappear; you have the rule of law.”
The ICC has never accepted a situation referred by a member state against a non-member state. Moreover, the ICC has been understood to be a court for dealing with the world’s worst atrocities. Thus it has never pursued crimes that did not involve large-scale murder and extreme brutality. Finally, no international criminal tribunal, from Nuremberg on, has ever prosecuted anyone for settlement activity, despite an abundance of potential targets from Morocco to Indonesia. Thus an ICC investigation, let alone an actual prosecution, would be unprecedented and mark a significant departure from the practice of the court.
Moreover, the ICC simply does not have jurisdiction under the terms of its statute. Since Israel is not a member state, the court could have jurisdiction over its officials only if the settlements were on Palestinian sovereign territory. They are not.
The borders of Palestine, like those of Israel, remain uncertain and disputed. Even the General Assembly’s statehood resolution did not purport to establish borders (which is not part of statehood recognition anyway), and in fact recognized that the territory of Palestine remains to be negotiated. Even if there is territory over which the Palestinian government has clear control (Ramallah, for example), all the settlements fall in the most disputed territory, with the vast majority of construction taking place within a few miles of the 1949 Armistice Line.
..Finally, the court can pursue only “grave” instances of the crimes within its jurisdiction — the worst of the worst. This has thus far been confined to contexts of mass atrocities, involving at least thousands of innocent victims. Settlements may be internationally reviled, but they are not massacres of civilians, or the use of little kids as cannon fodder, crimes with which the ICC has dealt thus far, and it would both trivialize and politicize the ICC to treat them as such. To be sure, some activists have argued for loosening the gravity requirement to include actions upsetting to the international community — specifically to facilitate the prosecution of Western nationals. If the building of houses for civilians constitutes a grave crime, surely a series of errant drone strikes could qualify (Afghanistan is already a member).