The International Criminal Court soon faces a big test—a test that could reveal whether it is truly an independent institution.
The Palestinian Authority has asked the court’s chief prosecutor, Luis Moreno-Ocampo, to examine if Israel was guilty of war crimes during its recent Gaza operation. Moreno-Ocampo should take a look into the allegations, not the least to refute the assertion that the court is an instrument of the West.
I have been a big supporter of the court and have written in its favor for a decade now, ever since it was being formed. But an article a few months ago in The Nation by Professor Mahmood Mamdani of Columbia University gave me pause. Mamdani insists that the International Criminal Court can be seen as the legacy of a tradition of Western paternalism toward the rest of the world, in some sense displaying a continuity with colonialism. While Mamdani overreaches in his argument and downplays the Bush Administration’s opposition to the court (for more on that see my January 2007 piece in The Progressive), he does make some interesting points.
“The fact of mutual accommodation between the world’s only superpower and an international institution struggling to find its feet on the ground is clear if we take into account the four countries where the ICC has launched its investigations: Sudan, Uganda, Central African Republic and Congo,” Mamdani writes. “All are places where the United States has no major objection to the course chartered by ICC investigations. Its name notwithstanding, the ICC is rapidly turning into a Western court to try African crimes against humanity. It has targeted governments that are U.S. adversaries and ignored actions the United States doesn’t oppose, like those of Uganda and Rwanda in eastern Congo, effectively conferring impunity on them.”
Mamdani limits his analysis to Africa, not delving into the obvious issue as to whether the International Criminal Court should have considered a case against the Bush Administration for its illegal invasion of Iraq. (In fact, Roger Cohen points out in a New York Times column that Moreno-Ocampo rejected pleas to try British forces in Iraq.)
Mamdani exposes a basic structural flaw with the International Criminal Court: The U.N. Security Council can refer cases to the court (even regarding a non-signatory) or, conversely, block any such attempts. This gives an inordinate amount of clout to the five permanent members, including the three Western powers. This explains to a large extent the hesitance of the court’s chief prosecutor to take on the West or its allies.
In the case of Israel, Moreno-Ocampo faces a number of legal and procedural hurdles. Israel is not a signatory to the court. And the very legitimacy of the Palestinian Authority is in question, especially after Hamas’s takeover of Gaza. Nevertheless, Moreno-Ocampo has indicated—after initially declining the case—that he is considering whether to go ahead, possibly including a review of any war crimes that Hamas may have committed.
The Obama Administration has already signaled its approval of the International Criminal Court. U.S. Ambassador to the U.N. Susan Rice two weeks ago called the court “an important and credible instrument,” indicating that the United States is moving from confrontation toward co-optation.
Now is the time for the International Criminal Court to assert its independence. Opening a case against Israel would be a good start.
Peace and Justice Post 
Palestinians Press for War Crimes Inquiry on Gaza
February 11, 2009THE HAGUE — The Palestinian Authority is pressing the International Criminal Court in The Hague to investigate accusations of war crimes committed by Israeli commanders during the recent war in Gaza.
A mosque in El Atatra, Gaza, that was destroyed by the Israeli military. Israel said the mosque had been used by militants.
The Palestinian minister of justice, Ali Kashan, first raised the issue during a visit to the court’s chief prosecutor late last month, and he and other officials are due back again in The Hague this week, court officials said.
Luis Moreno-Ocampo, the prosecutor, had initially said he lacked the legal basis to examine the case. But since the Palestinian Authority signed a commitment on Jan. 22 recognizing the court’s authority, the prosecutor has appeared more open to studying the Palestinian claim.
“The prosecutor has agreed to explore if he could have jurisdiction in the case,” said Béatrice Le Fraper, the director of jurisdiction for the prosecution. She cautioned that accepting jurisdiction would not automatically set off a criminal investigation. “We are still very far from any decision; this is just the beginning of a long process,” she said.
The prosecutor has received more than 200 requests to look into allegations of war crimes during the recent fighting between Israel and Hamas militants. They include accusations from individuals and organizations that Israel violated the rules of war by singling out civilians and nonmilitary buildings, and by using weapons like white phosphorus illegally.
“Quite a few groups have sent experts to the region, people doing forensic work, studying explosives and other weapons,” she said. “The prosecutor can look at all open sources at this stage.”
Should a criminal investigation begin, the prosecution would send its own investigators, who would look into possible violations by both sides. Hamas’s practice of sending rockets into southern Israel, which often landed in civilian areas, might be viewed as a violation. Israeli officials justified their offensive by saying they were trying to stop the rocket attacks.
But even as envisioned by the Palestinian Authority, the case faces numerous hurdles, specialists say.
The court here is the world’s first permanent international criminal court, created to examine war crimes, crimes against humanity and genocide. It can prosecute any citizen from the 108 countries that are currently members of the court. Individuals, governments, the United Nations Security Council or the prosecutor can initiate cases.
Israel is not a member of the court, and the Palestinian territories, not being recognized as a sovereign nation, appear not to fulfill the requirements. But as a remedy, the Palestinian Authority has taken a first step by presenting a declaration to the court, formally accepting jurisdiction for “an indeterminate duration” over acts “committed on the territory of Palestine” since July 1, 2002, when the court’s authority began.
Lawyers say such a declaration allows for joining the court on an ad hoc basis, and has been allowed before, in the case of Sierra Leone, which is not a member. But while the Palestinian declaration has been recorded at the court, its validity is far from settled. The big question, lawyers at the court say, is whether the Palestinian Authority can grant jurisdiction in any form, and if so, how that will be defined.
The issue has raised the question of whether Palestinian officials hope to obtain an implicit recognition of statehood through the court.
The court “will not use the term statehood,” said a legal expert close to the case who spoke on condition of anonymity because the issue was still being decided. “The court will avoid defining whether Palestine is a state. The decision will be only if Palestine can be admitted for the purposes of the court statute.”
The Palestinian officials visiting The Hague in the coming days are expected to try to demonstrate that they have been allowed to sign other international treaties and conventions, and can therefore be accepted as a party to the 1998 Rome treaty that founded the court.
Ms. Le Fraper, the director of jurisdiction, said her office would call on international experts to help settle such questions.
Another unknown is whether the Palestinian Authority can bring a case involving jurisdiction in Gaza. The authority is run by Fatah, but its rival faction, Hamas, has declared itself the only authority in Gaza and ousted Fatah from the territory.
More than 1,300 Palestinians died in the recent war in Gaza, many of them women and children. Israeli officials have insisted that Israel respected international law during the fighting. Israel has also said that it will investigate its attacks on United Nations schools and headquarters and the use of unlawful weapons in urban areas, including the use of white phosphorus.
Human rights groups and a number of United Nations officials have called for an independent international inquiry into actions by both sides. Human Rights Watch said such an independent effort was essential because of “Israel’s poor record of investigating and prosecuting serious violations by its forces, and the absence of any such effort by Hamas or other Palestinian groups.”
Western politicians and other critics of Israel’s recent conduct in Gaza have also said that Hamas has violated the rules of war and committed war crimes with indiscriminate rocket attacks on Israeli civilians and the use of its own civilians as human shields.
Depending on what happens at the court, Hamas’s rocket attacks and other acts viewed by some as crimes could also become part of any criminal investigation. By accepting the jurisdiction of the International Criminal Court on its territory, the Palestinian Authority has also accepted jurisdiction over any war crimes by its own residents.
“That’s the way jurisdiction works,” said a court lawyer. “The Palestinians know that and have taken that risk.”
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