The problem with bringing in the international community to mete out justice in this legal black hole of unrestrained attacks on civilians and terrorism is that politics threatens to poison the entire enterprise. The issue this forum raises is whether Moreno-Ocampo can investigate the Gaza conflict. But, I don’t think the real question is can he, it’s should he. To get the can part out of the way, it’s pretty clear that the Palestinian National Authority does not have the power to accept ICC jurisdiction over the Gaza Strip, given that its lack of effective control over the territory precludes it from satisfying the Montevideo Convention’s criteria for statehood. The ICC would essentially have to recognize Palestine as a state in order for it to meet the requirements of Article 12(3) of the Rome Statute.

Although the Goldstone Report recommends that the Security Council step in with a Darfur-like referral once it becomes clear that Israel isn’t effectively investigating or prosecuting the report’s allegations, this route to accountability is, realistically, a non-starter. Months after the release of the report, the US House of Representatives overwhelmingly passed a resolution denouncing the report as “irredeemably biased and unworthy of further consideration or legitimacy.” It’s unlikely the fiercely pro-Israel US would gift-wrap its longtime ally for Mr. Moreno-Ocampo.

An article posted on a Newsweek blog days after the release of the Goldstone report claimed that Moreno-Ocampo was considering whether Lt. Col. David Benjamin, a reserve officer in the Israeli military, authorized war crimes during the Gaza campaign. The Prosecutor allegedly told Newsweek he has all the authority to launch an inquiry motu proprio because Benjamin holds dual citizenship in Israel and South Africa, and the latter has ratified the Rome Statute, bringing Benjamin into the Court’s orbit. In theory, Article 15 of the Rome Statute would allow Moreno-Ocampo to investigate only the specific crimes committed by Benjamin rather than looking at the entire Gaza situation, which he does not possess the requisite authority to do.

Now that the can is out of the way, I turn to the should. The argument for pursuing the Gaza situation is clear: to date, all of the country situations before the ICC are African. Here, we have a Western ally and democratic state that has probably committed some incarnation of war crimes or crimes against humanity. Not pursuing accountability in this case would reveal an unacceptable hypocrisy in the system of international justice and send a message that states with friends in high places will always remain above the law. The legitimacy of the ICC would certainly be compromised through such a blatantly asymmetric approach to justice. And, perhaps even more importantly, those responsible for killing hundreds of civilians, including many children, may never be held to account.

On the flip side, initiating an investigation into the Gaza conflict would completely politicize the ICC. If Moreno-Ocampo accepts the Palestinian Authority’s ad hoc referral, he will essentially be recognizing Palestine as a state. Certainly, this would send shivers down Israel’s spine, as it would mean said Palestinian state could refer alleged Israeli war crimes to the Court without the current legal wrangling. But the scarier ramification would be the complete politicization of the Prosecutor’s role. To my knowledge, nothing in the Rome Statute comes even close to imbuing the Prosecutor with the unprecedented power to grant statehood or engage in such high-level international relations. Crossing this line would certainly spell disaster for the fledgling ICC, as the institution would be inappropriately inserting itself as a stakeholder into an ongoing conflict situation and setting a very scary precedent.

If Moreno-Ocampo acknowledges the unsavoriness of such a move and decides instead to use his motu proprio powers as a loophole for going after individual actors who happen to suffer from the misfortune of dual-citizenship, his position will be equally delegitimized. Although any good Prosecutor should be proactive, targeting only Israeli officials in such a convoluted, deliberate way would be too aggressive, too biased, and, once again, too political.

I think the arguments against investigation are more compelling, but that doesn’t mean I’m not supportive of the situation’s being seriously considered by the Prosecutor and the international legal community. The debate and analysis that potential ICC prosecution has created keep the focus on countering impunity, one way or another. I hope this prompts a more local solution, whereby Israel seriously investigates the allegations and reviews its approaches to warfare and military justice. It’s unrealistic to expect the same from Hamas, but accountability efforts on the part of Israel could prove very positive for diplomacy. If a domestic solution cannot be realized, prosecution of Israeli and Palestinian officials by foreign prosecutors is always an option, given that war crimes and crimes against humanity are likely jus cogens norms, which may trigger universal jurisdiction in some countries. The specter of these external prosecutions may actually reinforce the case for a domestic solution.