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The Future of The Hague May Hinge on the War in Gaza

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January 13, 2015

January 13, 2015 – Since it was created more than a decade ago, the International Criminal Court (ICC), has largely been seen as a toothless, albeit well-intentioned institution. Tasked with what its top prosecutor, Fatou Bensouda, calls “mass crimes that shock the conscience of humanity,” the court has dealt with significant cases, but so far failed to score any high-profile convictions.

Now, as the ICC prepares to delve into Israeli-Palestinian affairs, supporters hope that taking on a related case could raise the court’s profile. Yet even the ICC’s most outspoken proponents fear that wading into the conflict could backfire by politicizing The Hague and reducing its status. “[The] teething period has been a difficult one for the court,” says Richard Dicker, a legal adviser at Human Rights Watch. But the latest developments “will test the mettle of the ICC.”

Earlier this month, the United Nations announced that Palestine, which it recognizes as an observer state, will be eligible to join the ICC in April. Riyad Mansour, the Palestinian ambassador to the U.N., told reporters he intends to bring cases involving Israeli settlements and alleged war crimes in Gaza last summer, to The Hague.

Some leaders in the developing world applauded the move, saying the court’s focus has previously been too narrow. “At last, the ICC may now take a case against someone other than Africans,” a diplomat from that continent said, echoing a widely held belief that The Hague has demonstrated a colonialist bend. ICC supporters disagree. But some such as Stefan Barriga, the deputy U.N. ambassador of the principality of Liechtenstein, still think the court should plow ahead, despite possible retribution from Israel’s allies. “In the long run, it would not hurt the court,” he says, “and it could help to counter the false narrative of bias against African countries.”

Skeptics, however, fear that wading into such a polarized debate in the Middle East will actually weaken the court at a time when its record is less than stellar. In 2005, the ICC issued an arrest warrant against the Sudanese strongman, Omar al Bashir, but he’s left the country several times without being detained. Last month the court acknowledged it failed to gather sufficient evidence to try Kenyan President Uhuru Kenyata on crimes against humanity because Nairobi authorities refused to cooperate. “Supporters of the ICC…should be careful what they wish for, given the ICC’s abysmal record on so many fronts,” says Brian Hook, who served as assistant Secretary of State under George W. Bush.

Israel doesn’t belong to the ICC. But nonmembers can still be put on trial if the Security Council refers their case to Hague, or if alleged crimes occurred in a territory of a court member (the Palestinian Authority considers Gaza part of its state). Jerusalem could decline to cooperate. But that doesn’t appear to be Israel’s strategy. “We are not worried,” said Lieutenant General Benny Gantz, the chief of staff of the Israeli army, during a visit to Washington last week. He and other Israeli officials have pointed to what they call significant efforts to avoid civilian casualties while defending Israel’s own citizens. Those include embedding international lawyers in army units and warning civilians of impending attacks.

Even if the court decides that Gaza-related complaints merit investigation, any trial must be carried out in coordination with Israel’s justice system, which is currently investigating more than a dozen cases related to the Gaza war. Given Israel’s well-respected courts, some observers say the ICC will find it easier to try cases accusing Hamas of indiscriminately shelling Israeli civilians than to take on the IDF.

But not everyone is taking their chances, which is why one Israeli law organization, Shurat HaDin, has recently asked the ICC to investigate war crimes not only against Hamas, but also against leaders in the Palestinian Authority, which last year formed a national unity government with the Islamic group. Abbas and the other officials have Jordanian citizenship and are therefore eligible to be tried by the ICC, says Nitsana Darshan Leitner, Shurat HaDin’s chairwoman. A trial against them would be a long shot, she added, but she hopes the prospect of it could serve as a warning. “To deter the Palestinians from going to The Hague,” she said, “we must make clear to them that they are vulnerable, too.”

The U.S.—Israel’s biggest supporter on the matter—is also technically vulnerable to prosecution. Last year the ICC launched a preliminary investigation into allegations of crimes by American soldiers in Afghanistan, which is an ICC member. Washington’s global influence makes advancing cases against it unlikely. But the possibility of Americans standing trial at The Hague is exactly what the U.S. was afraid of in the 1990s, when nations started negotiating the Rome Statute, which later created the ICC. At the time, American diplomats insisted that the new court only take up cases approved by the U.N. Security Council, where the U.S. wields a veto. They also opposed another clause that defined settlements as war crimes, feeling that this measure specifically targeted Israel.

The Clinton administration signed the Rome Statute with reservations but never sent the treaty to the Senate for ratification, and the Bush administration later rescinded the signing. The U.S., like other nations such as China, Russia, India, Pakistan and all the Arab countries, with the exception of Jordan and Tunisia, are still not members of the court. “Our big concerns were that the ICC lacks safeguards against political manipulation,” Hook told Newsweek.

Nevertheless, the Bush administration abstained when Sudan was referred to the ICC in 2005, and the Obama White House has been more friendly to The Hague, twice voting to support a Security Council referral to the court. Last year, Washington actively lobbied to pass a council resolution referring atrocities in Syria—where more than 200,000 people have died in a brutal civil war—to the ICC. But Russia and China nixed the resolution.

The latest move by the Palestinians, however, could change Washington’s more amicable stance. Last week, State Department spokeswoman Jen Psaki said that the administration will consult with Congress over legislation that mandates cutting off aid to the Palestinian Authority if its leaders bring a case against the Israelis to The Hague or assist in building one.

Court supporters shrug; American opposition to the ICC is nothing new. But many are in fact concerned about influential ICC members such as France and Canada, which have expressed strong reservations about the Palestinians’ latest gambit. These reservations have left Mansour, the Palestinian ambassador, confused but undeterred. “It is really puzzling, when you seek justice through a legal approach, to be punished for doing so,” he said.

For her part, Bensouda, the ICC prosecutor, is obliged to act on legal merit alone. But in the coming months, she’ll be forced to consider what’s quickly becoming a political morass. Her decision could well determine whether the ICC will remain a play toy for legal enthusiasts, or a powerful judicial body with worldwide authority. As Brett Schaefer, a scholar at the Heritage Foundation, put it, referring to the U.S. “The ICC is hamstrung by the fact that the most powerful democratic country in the world is not a member.”