National Post (National Edition)

The Hague is finished if it's now a political body



Does the jurisdicti­on of the Internatio­nal Criminal Court include “territory occupied by Israel during the Six-Day War in June 1967, namely the West Bank, including East Jerusalem, and Gaza”? That's the question the court's prosecutor, Fatou Bensouda, asked a threejudge “pretrial chamber” more than a year ago. If, as she argues, the court has jurisdicti­on over these territorie­s, she can begin a formal investigat­ion into whether “members of the Israel Defense Forces, Israeli (civilian) authoritie­s, Hamas and Palestinia­n armed groups” have committed war crimes there. That, she accepts, turns on whether Palestine is a “state” for the purposes of the court's founding treaty. The Palestinia­ns are a party to the Rome Statute; Israel is not.

The view of the chamber's presiding judge could not be clearer. “Palestine's statehood was not at all (and is still not) a settled issue within the United Nations, contrary to what the prosecutor argues,” Peter Kovacs said. He concluded that the court has jurisdicti­on over the same territorie­s as the Palestinia­n Authority. It does not have jurisdicti­on over the areas controlled by Israel under the Oslo Accords. The court's complement­arity principle means that it gets involved only if national authoritie­s are unwilling or unable to act. Kovacs pointed out that Israel could investigat­e alleged war crimes committed within the territory it controlled. In any case, he concluded, “without the cooperatio­n of the directly interested states ... the prosecutor will have no real chance of preparing a trialready case or cases”.

That conclusion is backed by a powerful judgment, citing sources going back to Attila the Hun. But it did not convince the other two members of the court. The majority view, delivered on Friday, was that Bensouda could proceed.

When a majority decision has been undermined by the senior judge in such stark terms — “this reasoning is in contravent­ion of both the law of the Vienna Convention and the court's jurisprude­nce,” Kovacs said — the normal thing would be to appeal. But Israel has chosen not to join the court, arguing that prosecutin­g individual­s is no substitute for peace negotiatio­ns. Seven countries argued that Palestine was not a state and could not accept the court's jurisdicti­on. Australia expressed “deep concern” at the ruling — as did the US. But these states cannot bring an appeal at this stage. So the prosecutor can now open a formal investigat­ion.

However, Bensouda's term has only four months left to run. Her successor should have been chosen last year. But none of the four shortliste­d candidates had enough support from the states that are parties to the court.

Although Israel took no part in the proceeding­s, Israeli officials made sure their arguments were heard in The Hague. If Israel can persuade the court that it has investigat­ed allegation­s of disproport­ionate attacks during the Gaza conflict of 2014, then it might be as successful as the UK was in staving off an investigat­ion into whether UK troops had committed unpunished war crimes against detainees in Iraq between 2003 and 2009.

But Bensouda's allegation that Israel forcibly transferre­d civilians — a crime against humanity — by letting them live in places such as East Jerusalem, from which they had been expelled less than 20 years earlier, is so far removed from reality that an Israeli investigat­ion would be pointless.

Benjamin Netanyahu said the court had “violated the right of democracie­s to defend themselves against terrorism”. According to the Israeli prime minister, the court had shown it was a political body. If that view attracts wider support, the ICC — already reeling from an internal investigat­ion last year that revealed widespread bullying, sexual harassment, incompeten­ce and inappropri­ate judicial inducement­s — will be finished. Its new prosecutor would do well to review this investigat­ion before it gets much further.


 ?? YVES HERMAN / REUTERS FILES ?? The Internatio­nal Court of Justice in The Hague.
YVES HERMAN / REUTERS FILES The Internatio­nal Court of Justice in The Hague.

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