- By David BoscoDavid Bosco is a Foreign Policy contributing editor and assistant professor at American University's School of International Service. He is at work on a book about the International Criminal Court's first decade.
One of the odd aspects of today’s likely United Nations vote on Palestine is that it’s less about Palestine’s privileges and status at the UN than at the International Criminal Court, an institution not formally part of the UN system. Israeli and U.S. diplomats worry that the UN statehood move may either lead the ICC to reconsider the grant of jurisdiction the Palestinian authority has already submitted or that Palestine may seek to become a full ICC member state.
Palestine first sought an ICC role in the context of the 2009 Gaza conflict. At the time, Palestinians (and plenty of others) charged that Israel’s ground and air offensive included either deliberate or recklessly negligent attacks on civilians. Those kinds of accusations are commonplace whenever Israel strikes. But what probably worries Israeli leaders as much as accusations of indiscriminate targeting is Article 8(2)(b)(vii). That article defines as a war crime the following behavior:
The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.
This is a particularly troubling provision for Israel because it can always investigate through its domestic institutions accusations that Israeli forces targeted civilians or did not take adequate measures to protect them (it has done so several times in the past). Under the doctrine of "complementarity", a legitimate national investigation should stop the ICC in its tracks. But Israel would have a very hard time offering a complementarity defense of its settlement policy.
So how legitimate are Israeli fears that the ICC will come calling? Mark Leon Goldberg makes a smart case here that the court has, thus far, been exceptionally cautious in what investigations it has opened. As Goldberg points out, it’s not at all certain that the prosecutor would do anything more than take a cursory look at the Palestine situation even once the jurisdictional question is clarified. The prosecutor might decide that any crimes aren’t grave enough or that an investigation wouldn’t serve the interests of justice. The United States, and maybe big European powers, would lean heavily on the prosecutor to reach just such a conclusion. But the court would also face strong pressure in the other direction, not least to counter the impression that the court only has eyes for weak African states.
And there’s good evidence that the court can resist political pressure, even from powerful states. In different ways, the United States, Britain, France, Russia and China all made clear to the previous ICC prosecutor their view that indicting Sudanese president Omar al-Bashir would not be helpful. He plunged ahead anyway. It’s no surprise that Israel doesn’t want to rely on the prosecutor’s discretion.
Colum Lynch is Foreign Policy's award-winning U.N.-based senior diplomatic reporter. Lynch previously wrote Foreign Policy's Turtle Bay blog, for which he was awarded the 2011 National Magazine Award for best reporting in digital media. He is also a recipient of the 2013 Elizabeth Neuffer Memorial Silver Prize for his coverage of the United Nations.
Before moving to Foreign Policy, Lynch reported on diplomacy and national security for the Washington Post for more than a decade. As the Washington Post's United Nations reporter, Lynch had been involved in the paper's diplomatic coverage of crises in Afghanistan, Iraq, Lebanon, Sudan, and Somalia, as well as the nuclear standoffs with Iran and North Korea. He also played a key part in the Post's diplomatic reporting on the Iraq war, the International Criminal Court, the spread of weapons of mass destruction, and U.S. counterterrorism strategy. Lynch's enterprise reporting has explored the underside of international diplomacy. His investigations have uncovered a U.S. spying operation in Iraq, Dick Cheney's former company's financial links to Saddam Hussein, and documented numerous sexual misconduct and corruption scandals.
Lynch has appeared frequently on the Lehrer News Hour, MSNBC, NPR radio, and the BBC. He has also moderated public discussions on foreign policy, including interviews with Susan E. Rice, the U.S. national security advisor, Gerard Araud, France's U.N. ambassador, and other senior diplomatic leaders.
Born in Los Angeles, California, Lynch received a bachelor's degree from the University of California, Berkeley, in 1985 and a master's degree from Columbia University's Graduate School of Journalism in 1987. He previously worked for the Boston Globe.| Turtle Bay |