November 19, 2018

World Court Poses U.S., Israel Threat

The new International Criminal Court sounds like such a good idea, why would either the United States or Israel oppose it?

The court came into existence on July 1, when 60 countries ratified the treaty establishing it. The court’s mission is to punish genocide, crimes against humanity and war crimes — a noble and uncontroversial goal.

Yet both the United States and Israel have announced that they will not sign the treaty or participate in the court. The U.S., in particular, has worked to undermine the new tribunal, passing legislation that protects American troops from an International Criminal Court prosecution and pressuring allies to agree not to extradite Americans to the court.

Shunning an institution that fights genocide and war crimes may seem sinister, and human rights activists have protested the United States’ and Israel’s stance. For Jews, who were victims of genocide during the Holocaust, opposing such a court is far from comfortable.

But opposition to the court is justified. Far from having power to prosecute only heinous offenses that all civilized nations condemn, the International Criminal Court, or ICC, will be applying a complicated series of new rules set forth in the Rome Statute (adopted at a U.N. conference in Rome) governing the court. The list of "crimes" in the Rome Statute goes on for 12 pages. The description of the elements of those crimes runs nearly 50.

The result is a legislative act of extraordinary complexity that authorizes the ICC to impose criminal punishment in cases where international law is far from clear.

Consider one of the crimes that the ICC will interpret and prosecute: "Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilian objects … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated."

One of the horrors of war is that it often causes the death of innocent civilians. How would the allied bombing of Dresden in World War II — not to mention the bombing of Hiroshima and Nagasaki — have fared under this indeterminate standard? Or recent bombing campaigns in Afghanistan or the Gaza Strip that caused civilian deaths?

The question of whether such bombing is appropriate — or whether it is a war crime — will be left to the sole discretion of ICC judges.

Another crime that was included in the Rome Statute — at the request of the Egyptian delegation, and over Israel’s bitter protests — is "the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies." The crime is an adaptation of language in the post-WWII Hague Convention that forms the basis for the charge that Israel’s settlements are illegal under international law.

The definition of this crime is limited only by a footnote that says that the term "transfer" needs to be "interpreted in accordance with the relevant provisions of international humanitarian law," without providing any further guidance

While much is unclear about the International Criminal Court’s future, the following is certain: Israel’s opponents will make every effort to have Israelis tried for the crime of building settlements.

Rejection of the treaty does not automatically exempt Americans or Israelis from the court’s self-defined authority. The Rome Statute allows the ICC to assert jurisdiction not only over citizens of countries that have ratified the treaty but also whenever the alleged crime occurs on the territory of a ratifying country.

So if the United States undertakes a peace-keeping mission in the Congo, which has ratified the treaty, the court could hold a trial and imprison U.S. troops who act inconsistently with the regulations of the Rome Statute. If Syria ratifies the treaty, it could argue that the ICC should assert jurisdiction over settlement building on the Golan, since this alleged crime is taking place on Syrian territory.

The court’s supposed procedural safeguards offer little comfort. The ICC is supposed to assert jurisdiction only if the national court, like the U.S. or Israeli court system, is "unable or unwilling" to prosecute the accused war criminal. But this provides no protection where the court and the country disagree in principle on what conduct constitutes a crime.

For example, if an Israeli court were to determine that settlement activity does not constitute a "war crime," it is unlikely that such a decision would deter the ICC from proceeding with its own prosecution. Under the Rome Statute, the ICC itself investigates, decides its own jurisdiction, acts as judge and jury and doles out punishments.

This poses far too much risk for both the U.S., which undertakes sometimes unpopular military action in its role as the world’s sole remaining superpower, and for Israel, which suffers persistent international browbeating at the hands of the United Nations.

The specter of politically motivated prosecutions of Americans or Israelis cannot be ignored, because the Rome Statute is broad enough to allow them to go forward unchecked.

Joseph M. Lipner is a Los Angeles attorney.