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Comment on the Gaza Question: “Does the Prosecutor of the ICC have the authority to open an investigation into alleged crimes committed in the 2008-2009 Gaza conflict?”

Wade
800
August 31, 2010
9:00 pm

I believe that this question, while framed neutrally, is practically impossible to separate from the political controversies surrounding Gaza. Perhaps a neutral, law-based framing is the only way that all sides will feel comfortable openly debating this charged issue, but starting a debate is not the same as being able to arrive at a comprehensive answer to the question posed. I do not think the true value of this forum can be found in the framing of the issue, in arguments about principles of statehood and jurisdiction, or in the carefully-phrased responses of this forum’s “invited experts.” I think the true value will come from the context that forum members give this question in their individual responses. I hope that people from both sides of this issue come here and explain why the prosecutor should or should not investigate the Gaza conflict, in the context of their individual lives, circumstances, beliefs and points of view. I am an American law student. I can understand the legal principles behind this question, but I feel inadequate to answer this question because I don’t think I fully understand the context and the situation over in Gaza. I don’t think a few explanations by United States main-stream media outlets are enough to base a reasoned opinion on. I ask for more context because for me, killing and destroying innocent civilians and their homes is simply unacceptable. I don’t understand what could make it acceptable. I hope that context will at least help me understand Israel’s side.

However, perhaps I am approaching this the wrong way. One of the first things I learned in law school is that what is right doesn’t always match up with what is legal. Just because inherent principles of justice might demand action doesn’t mean that the International Criminal Court should be the one to charge in and act. If the Prosecutor evaluates the relative statutes, treaties and conventions related to his authority to investigate and decides that he does not have jurisdiction, then the International Criminal Court should stay out. It is still a relatively new court. It needs to stay well within its legally designated powers if it is to be respected and followed throughout the world. Even if that would be unjust for the victims of Gaza, the International Criminal Court has victims all over the world crying out for justice. If the International Criminal Court loses its respect and legitimacy, it will not be able to help anyone anywhere.

While I wish it were otherwise, I think, based solely on principles of law, that the prosecutor will likely not be able to investigate the events in Gaza. Israel has declined jurisdiction, and I find it highly unlikely that the Security Council, which includes the ever pro-Israel United States, would refer the situation to Mr. Ocampo. The Palestinian National Authority has declared that it accepts jurisdiction, but it does not seem that they meet the requirements for statehood under the terms of Article 1 of the Montevideo Convention. The Palestinian National Authority’s power has been explicitly limited in vitally important areas. For example, the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip limited the PNA’s authority in the sphere of foreign relations and the exercise of diplomatic functions. In addition, it seems to be fairly clear that the PNA does not even control Gaza; Hamas controls Gaza.

We shall see. I look forward to following this debate and learning more about both sides of this issue.

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Harlan: The parties to the Statute have agreed to give third states the right to accept the jurisdiction of the Court. The recent decision of the Prosecutor to reject the Article 12(3) Declaration of the State of Palestine was ultra vires in accordance with the rules governing the rights and obligations of third states under treaties contained in Articles 35-37 of the Vienna Convention on the Law of Treaties. English [PDF] The Prosecutor can't revoke or modify an obligation under the Statute after it... (more)
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Harlan: Danterzian, I thought that all of Ms. Herzberg's arguments were unconvincing. *The “principles of international law recognized in the Charter of the Nürnberg Tribunal established that certain acts result in international criminal liability when they are "directed against any civilian population." - even stateless Jewish and Roma peoples. Many of the comments here reintroduce the dangerous concept that a State enjoys the freedom to commit criminal acts against an... (more)
danterzian: I find part of Herzberg's argument troubling. She essentially argues that because (1) the Rome Statute must not allow grave crimes to go unpunished and (2) the PNA and Arab League frequently commit grave crimes, therefore (3) the ICC should not exercise jurisdiction over the grievous crimes committed in Palestine. Although I agree that there are other reasons for the Court to not exercise jurisdiction, I don't believe the above argument is one of them. The Rome Statute's preamble states that... (more)
Herzberg: The PNA declaration should be rejected for several reasons, particularly because it is part of a soft power political war—also known as the “weaponization” of human rights—that has exploited international legal frameworks in order to avoid a negotiated solution to the Arab-Israeli conflict.1 However, the most compelling reason for its rejection is that the PNA and its supporters have “unclean... (more)
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