The Multilateralist

Is Israel facing legal peril?

An interesting commentary in Haaretz warns of the legal implications for Israel if Palestine secures recognition at the United Nations: Israel’s cautious foreign policy on legal matters over the past 44 years is likely to collapse in September. The mechanisms of legal defense that it built since the occupation of the West Bank and Gaza ...

An interesting commentary in Haaretz warns of the legal implications for Israel if Palestine secures recognition at the United Nations:

Israel’s cautious foreign policy on legal matters over the past 44 years is likely to collapse in September. The mechanisms of legal defense that it built since the occupation of the West Bank and Gaza Strip, to combat the “danger” of international jurisdiction about its conduct toward millions of people who are under its control, are likely to turn into dust at the stroke of the diplomatic moves.

If indeed the international community recognizes a Palestinian state, the question whether officers in the Israel Defense Forces who are involved in assassinations, shooting at unarmed demonstrators and using phosphorus bombs will be interrogated and brought to trial at the International Criminal Court in The Hague and the question of whether international human rights treaties (and other treaties) will obligate Israel during action in the territories, will no longer be decided in the government offices in Jerusalem but rather in the corridors of the Muqataa in Ramallah.

Israel has reason to be nervous about the ICC and has kept its distance from the young court. It’s certainly true that if Palestine is recognized as a state and joins the ICC, the Hague-based court could have jurisdiction over alleged abuses it can’t reach now. But I wonder whether Israel has as much to fear as Palestinian power-brokers do. As Judge Goldstone recently pointed out, Israel actually investigates its own while Hamas does not. That means that the ICC doctrine of "complementarity"–the notion that the court should only intervene when national courts aren’t doing their job–should offer Israel protection while exposing Hamas to scrutiny.

ICC skeptics will quickly point out that the court itself is the judge of whether national legal systems are handling investigations adequately.  Judges and a prosecutor determined to try Israelis could simply decide that the Israeli justice system isn’t coping.  But the working assumption of these skeptics–that the court has a built-in anti-U.S., anti-Israel bias–seems highly questionable at this point. The shrill warnings of John Bolton and others notwithstanding, the court hasn’t come close to taking a case involving the United States or any of its allies. Those who hope that the ICC will turn the legal tide against Israel are likely to be disappointed.

An interesting commentary in Haaretz warns of the legal implications for Israel if Palestine secures recognition at the United Nations:

Israel’s cautious foreign policy on legal matters over the past 44 years is likely to collapse in September. The mechanisms of legal defense that it built since the occupation of the West Bank and Gaza Strip, to combat the “danger” of international jurisdiction about its conduct toward millions of people who are under its control, are likely to turn into dust at the stroke of the diplomatic moves.

If indeed the international community recognizes a Palestinian state, the question whether officers in the Israel Defense Forces who are involved in assassinations, shooting at unarmed demonstrators and using phosphorus bombs will be interrogated and brought to trial at the International Criminal Court in The Hague and the question of whether international human rights treaties (and other treaties) will obligate Israel during action in the territories, will no longer be decided in the government offices in Jerusalem but rather in the corridors of the Muqataa in Ramallah.

Israel has reason to be nervous about the ICC and has kept its distance from the young court. It’s certainly true that if Palestine is recognized as a state and joins the ICC, the Hague-based court could have jurisdiction over alleged abuses it can’t reach now. But I wonder whether Israel has as much to fear as Palestinian power-brokers do. As Judge Goldstone recently pointed out, Israel actually investigates its own while Hamas does not. That means that the ICC doctrine of "complementarity"–the notion that the court should only intervene when national courts aren’t doing their job–should offer Israel protection while exposing Hamas to scrutiny.

ICC skeptics will quickly point out that the court itself is the judge of whether national legal systems are handling investigations adequately.  Judges and a prosecutor determined to try Israelis could simply decide that the Israeli justice system isn’t coping.  But the working assumption of these skeptics–that the court has a built-in anti-U.S., anti-Israel bias–seems highly questionable at this point. The shrill warnings of John Bolton and others notwithstanding, the court hasn’t come close to taking a case involving the United States or any of its allies. Those who hope that the ICC will turn the legal tide against Israel are likely to be disappointed.

David Bosco is an associate professor at Indiana University's School of Global and International Studies. He is the author of books on the U.N. Security Council and the International Criminal Court, and is at work on a new book about governance of the oceans. Twitter: @multilateralist
Tag: Israel

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