Tag Archives | International Criminal Court

New Paper on International Criminal Court’s Jurisdiction over Israeli Settlements

My paper, Israel/Palestine — The ICC’s Uncharted Territory, has just been published in the Journal of International Criminal Justice. It explains that the International Criminal Court does not have jurisdiction over the oft-threatened and much-discussed Palestinian referral of Israeli settlements, despite the General Assembly’s recognition of Palestine as a non-member state. In brief, the relevant conduct does not occur “in the territory” of Palestine as required by Art. 12 of the Court’s Statute. Abstract here.

The article also provides perhaps the most comprehensive analysis thus far of the ICC’s territorial jurisdiction, which has thus far not caused much controversy, but could have significant implications for American forces in Guantanamo Bay, border incidents in the Koreas and elsewhere in Asia, and numerous other contexts.

The timing is fortuitous: Nabil Shaath, a top Palestinian official and negotiator, last week reemphasized threats to attempt to bring Israel before the ICC after the current negotiation period ends this spring. OK, not that fortuitous, as such threats come with considerable regularity, and it does appear this is Abba’s next move.

A separate article will explain why such a case might not satisfy the ICC’s requirement of dealing only with the gravest of the world’s atrocities. (I say might, because it is anyone’s guess; though the gravity threshold is a key component of the Court’s jurisdiction, it remains entirely undefined.) Thinking about calling it “When Gravity Fails” but that might be too cute. [...]

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International Law Imperialism vs. Proceduralism

My op-ed on the African Union and the International Criminal Court at the Georgetown Journal of International Affairs (also a good takes at EJIL:Talk and Dov Jacobs):

Let us distinguish between the broad currents in international legal thought – what I would call international law “proceduralists” versus “imperialists.” International law has traditionally been procedural–what counts is following the rules. If the rules enjoy respect, international law is considered a success. From this perspective, it would not matter whether the thirty-four African members of the Court quit or stay in. The Rome Statute provides rules for both entry and withdrawal, and thus doing the latter is value-neutral.

Yet, the ICC is the product of a different intellectual current. More specifically, it is a product of international law imperialism. This approach wants to increase the scope, power and prestige of international law and its institutions. It promotes the creation of more treaties, universal membership for treaties, and more international legal bodies exercising powers that previously would have been exercised by sovereign authorities, irrespective of whether the rules and institutions might not work well at first. Unlike proceduralists, imperialists think international law is on the whole a good in itself, capable of making the world a better place. Supporters of this current therefore proudly count the number of member states in the ICC—122 member states as of now—to demonstrate the global acceptance of the institution.

This number may still be cited after Addis Ababa and could lead some to consider the outcome of the summit a success for international law. Thus, Addis Ababa shows where the proceduralist and imperialist visions diverge. Imperialists may be relieved by the outcome of the summit, but proceduralists may consider it a defeat.

The ICC’s membership roll represents an increasingly hollow statistic. For one, the Great Powers

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African States Not Quitting ICC, Just Undermining From Within

[This is en excerpt from an op-ed/short essay I've written on the AU action, which is available for publication...]
African Union leaders met in an extraordinary summit in Adas Ababa last week to discuss their strained relations with the International Criminal Court (ICC), as it begins trying its first sitting head of state, President Uhuru Kenyatta of Kenya. Supporters of the Court breathed a sigh of relief when the event ended, as I had predicted, without a much-anticipated African countries quitting the ICC en masse in protest of its Africa-focussed docket.

However, while less dramatic than a group defection from the ICC, the policies adopted by the special synod represent perhaps as profound a repudiation of The Hague-based Court. The African action exposes the weaknesses of the Court while further politicizing it.

The AU proclaimed that “no charges shall be commenced or continued before any international court… against any serving Head of State.” Their demand for immunity for leaders has one problem: it directly contradicts the Rome Statute, the treaty the serves as the ICC’s charter. Art. 27 provides a defendant’s leadership position is entirely “irrelevant,” and it notes this applies to heads of state “in particular.” Indeed, “ending impunity” for national leaders is the maxim of the Court. The AU leaders’ demand is not absurd – as they note, customary international law has traditionally provided head-of-state immunity. But the ICC is supposed to represent progress beyond such parochial and self-serving norms.

In short, the AU has endorsed violating the Court’s constitution while not quitting it. For the integrity of international law, this might be worse. When the United States quit the jurisdiction of the International Court of Justice, and when President Bush “unsigned” the Rome Statute, diplomats and international lawyers pointed out that this proves how seriously [...]

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The ICC Rules Libyan Case Inadmissible

The International Criminal Court today for the first time ruled a case inadmissible, and left the matter to domestic justice. Doubtless the anti-activist ruling has nothing to do with the confab of African countries today, called together by Kenya to discuss quitting the Court’s jurisdiction en masse in protest of the Court doing its job and hearing cases involving African countries that had had accepted its jurisdiction. Such a move, which I don’t think will happen, would be devastating for the court.

The case involved charges against Al-Senussi, Qaddafi’s former head of military intelligence and doubtless very terrible guy. He has been in Libyan custody for over 18 months, with an investigation slowly proceeding, but no clear end in sight. The ICC charged Senussi after the Security Council referred the Libyan situation to them during the civil war that lead to Qaddafi’s downfall. It is particularly notable that the Court dismissed the case here when it arose from a S.C. referral, which are rare and generally correspond to an extra level of seriousness.

The Pre-Trial Chamber (PTC) of the Court found the case satisfied the complementary principle – that is, the ICC can only act when the home state is “unable or unwilling” to prosecute. This principle is essential for international criminal justice, but has gotten little elaboration by the Court in its 11 years of existence.

Libya is certainly “willing” – there is no concern here of a sham prosecution to shield the former regime baddie from justice. It might not be “willing” to overcome the various turf, bureaucratic and inertia problems that it might face in staging a trial but that is not what willingness means, the PTC suggests. The bigger question is “able.”

This is a country whose Prime Minister just got taken for [...]

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International Criminal Court Jurisdiction Over Israeli Settlements

I have put up a new working paper on SSRN, entitled Jurisdiction Over Israeli Settlement Activity in the International Criminal Court. It is not about the legality of settlements. Rather, it is about whether repeated and growing threats by Palestine and its supporters to make an international case out of it are consistent with the admissibility requirements of the ICC. I welcome substantive comments (as well as inquiries from law review editors).

Here is the abstract:

In the wake of the U.N. General Assembly’s recent recognition of Palestinian statehood, the Palestinian government has made clear its intention to accept the jurisdiction of the International Criminal Court (ICC), where it could challenge the legality of Israeli settlements. This Article explores the previously unexamined jurisdictional hurdles for such a case. (To focus on the jurisdictional issues, the Article assumes for the sake of argument the validity on the merits of the legal claims against the settlements.)

First, the ICC can only consider situations “on the territory” of Palestine. Yet the scope of that territory is undefined. An “occupation” can arise even in an area that is not the territory of any state – but ICC jurisdiction does not extend there. Thus even if Israel is an occupying power throughout the West Bank for the purposes of substantive humanitarian law, this does not establish that settlement activity occurs “on the territory” of Palestine. Moreover, the ICC lacks the power to determine the boundaries of states, and certainly of non-member states. Moreover, the Oslo Accords give Israel exclusive criminal jurisdiction over Israelis in the West Bank. Palestine cannot delegate to the ICC territorial jurisdiction that it does not possess.

Second, the ICC only takes situations of particular “gravity.” Yet settlements are not a “grave breach” of the Geneva Conventions. No international criminal tribunal [...]

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The ICC and the Territory of Palestine

The General Assembly’s recognition of Palestine as a state (which I’ve discussed previously) is widely regard as having the central upshot of facilitating a case against Israeli officials in the International Criminal Court. Indeed, Prime Minister Abbas has already threatened such action in regard to Israeli settlements – which are said to constitute an unlawful “deportation or transfer” of Israeli civilians into occupied territory.

Yet the GA’s recognition of Palestine’s statehood does not establish that the Israeli civilian population centers are “on its territory,” a basic requirement for ICC jurisdiction, as I explain today in a post an the European Journal of International Law’s blog. Here is part of it:

The mere fact of Israeli occupation does not make the territory part of Palestinian sovereign borders… the dominant interpretation of the Geneva Conventions is that an “occupation” can arise even in an area that is not the territory of any state. Yet even if Israel is an occupying power throughout the West Bank for the purposes of substantive humanitarian law, this does not establish that settlement activity occurs “on the territory” of the Palestinian state.

To put it differently, even if violating the Geneva-based norm of transfer need not take place in the territory of a state, it still must be “on the territory” of a state for the ICC to have jurisdiction, as the ICC exercises delegated territorial jurisdiction. This is consistent with the respective roles of the Geneva Conventions and the ICC. The Conventions, which have near universal adherence, are interpreted broadly because of a desire to not have gaps in coverage. With the ICC, which has a limited and particular jurisdiction, gaps in jurisdictional coverage are inherent.

I am working on a longer article on the jurisdictional issues that would be raised by a [...]

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