THE PALESTINIAN AUTHORITY IS SET TO BECOME A MEMBER OF THE INTERANTIONAL CRIMINAL COURT APRIL 1

The court has a history of hostility against both Israel and the United States

If the Palestinian Authority goes ahead in the International Criminal Court with its announced plans to charge Israel and its government and military leaders with committing war crimes, look for the $400 million annual aid package Palestinians receive from the U.S. to be cut off.

THE GLOBAL COURT AS POLITICAL WEAPON
The International Criminal Court has a dismal record and appears to hold an animus toward the U.S. and Israel

By Michael B. Mukasey
Former Attorney General of the United States

The Wall Street Journal
January 11, 2015

Last week the Palestinian Authority passed a milestone in its campaign to credential itself while delegitimizing Israel. On Tuesday, United Nations Secretary-General Ban Ki-moon confirmed that the Palestinians, who applied Jan. 1 for membership in the International Criminal Court, would join the organization April 1. On Wednesday the ICC’s registrar said that the court’s jurisdiction would extend back to June 13, 2014, the date chosen by the Palestinian Authority. In other words, a date shortly before the outbreak of hostilities between the Israelis and the Hamas terror organization that rules the Gaza Strip—and, in a nice touch, the day after three Israeli teenagers were murdered by Palestinians.

The Palestinian Authority joining the ICC is a more fraught sally into the international arena than its past efforts. Recognition of Palestine as a nation-state by this country or that, or membership in an international agency like Unesco, carries no focused threat to Israel. The ICC is different, as the word “criminal” in its name would suggest.

The tribunal was constituted under a treaty that became effective in 2002 with the U.N. as its depository. The ICC has jurisdiction to hear grave charges in four broad categories: genocide, crimes against humanity (defined as various acts of violence in a widespread or systematic attack on civilians), war crimes (serious breaches of the laws of armed conflict) and aggression (a category not yet in effect).

The process starts with an investigation by a prosecutor who may act upon referral by the U.N. Security Council, on application to the court by a state party to the treaty, or on the prosecutor’s initiative. However, when acting other than at the behest of the Security Council, the prosecutor may investigate only if the violation occurred in the territory of a state that has accepted the court’s jurisdiction. The court’s judges must authorize prosecutor-initiated investigations and confirm decisions to charge based on a finding that there is reasonable basis to proceed.

The court is supposed to function only as a complement to the legal systems of nation-states. Under this principle of complementarity, the court is not supposed to act if a state has a legal system that is willing and able to investigate and, if necessary, to prosecute charges.

How does this system work in practice? Since 2002, of the 21 cases brought before the court, two—against Congolese rebels—have resulted in convictions. All of the cases have been brought in African countries, and the two brought against heads of government—Kenyan President Uhuru Kenyatta and Sudanese President Omar al-Bashir —have failed. The prosecutor had to drop charges against Mr. Kenyatta. Mr. Bashir treats his indictment as a joke, traveling with impunity; the prosecutor has suspended the gathering of evidence in the Darfur region of Sudan, where Mr. Bashir’s crimes were said to have occurred.

Beyond having a dismal success record, the current chief prosecutor, Gambian lawyer Fatou Bensouda, appears hostile to both Israel and the U.S. Consider the case involving the Mavi Marmara, the vessel that set out from Turkey in May 2010 as part of a “humanitarian” flotilla meant to break Israel’s lawful blockade of Gaza to curtail the kind of rocket and tunnel attacks that erupted last summer.

The vessel was owned by a Turkish group with ties to al Qaeda. Intercepted and warned by the Israeli navy that it was entering a blockade area, the vessel did not stop. When Israeli forces tried to land from a helicopter, they were attacked with knives and clubs, among other weapons. The Israelis fired live ammunition after several of them had been wounded. Nine of the would-be blockade runners aboard were killed, and a 10th died later.

Turkey is not an ICC member state, but the vessel’s owner, with cunning foresight, had registered the ship in the Comoros Islands, which is. When Comoros accused Israel of war crimes based on the shipboard deaths, the ICC prosecutor was obligated to consider whether the case was of “sufficient gravity” to fall within the jurisdiction of the court. Not surprisingly, Ms. Bensouda had to conclude, simply based on the scale of injury, that it was not.

Although that determination should have been the sum total of her findings, it wasn’t. Rather, two months ago the prosecutor filed a 60-page report purporting to find, based on a General Assembly resolution and an article by the head of the International Committee of the Red Cross, that Israel is an “occupying power” in Gaza—despite having disengaged from that territory in 2005. The report also found “reasonable basis” to believe that the “war crime” of “willful killing” had been committed; absurdly, the question of self-defense was left to later analysis.

More recently, during a recorded interview at a conference in Morocco, Ms. Bensouda dropped the “reasonable basis” mask and said flatly that war crimes had been committed aboard the Mavi Marmara.

Israel is not the only democracy in Ms. Bensouda’s sights. In December she disclosed that she is “assessing available evidence” on “enhanced interrogation techniques” supposedly practiced by U.S. forces in Afghanistan, which is an ICC member state. As it happens, such techniques were applied by the Central Intelligence Agency, a civilian agency, and not in Afghanistan. Ms. Bensouda is unlikely to be deterred by such minutiae, any more than she is deterred by what is supposed to be a bedrock principle of the ICC itself: complementarity—that a nation-state with a fully functioning legal system competent to deal with claims of criminality should not be hauled before an international tribunal.

Providentially, the list of 122 countries that have submitted to ICC jurisdiction—from Afghanistan to Zambia—does not include the U.S. or Israel.

U.S. administrations have been careful not to subject U.S. military or civilian officials to the whims of a court deeply enmeshed in world politics. Even as he preliminarily signed the ICC treaty in 2000, President Clinton explicitly declined to submit it to the Senate for ratification unless U.S. concerns were alleviated. When that hadn’t been done by 2002, President Bush withdrew even the modest Clinton endorsement, and Congress passed the American Service-Members’ Protection Act to ensure that U.S. military personnel would never be brought before the ICC.

The U.S. has cooperated with ad hoc tribunals that addressed crimes committed in Rwanda and in the former Yugoslavia, and on a selective basis with the ICC, as with America’s 2010 announcement that it would protect Kenyan witnesses in the ICC’s Kenyatta investigation. But despite facile claims—overseas, and even domestically—that they have committed war crimes, both the U.S. and Israel, as mature, functioning democracies, are obligated as sovereigns to protect their public servants and citizens. Submitting to ICC jurisdiction would compromise those obligations for no more than an irresponsible beau geste.

As to the Palestinian Authority and the ICC, it is no compliment to either to say that at this point they may deserve one another.