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Josh D. Scheinert Headshot

Don't Bar Palestine From the International Criminal Court

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One of the most interesting fallouts from the recent Palestinian victory at the United Nations is the spotlight on the International Criminal Court. Statements coming out of Ottawa and Washington have paint the prospect of Palestinian membership in the ICC, which it is now entitled to seek, as unleashing a Pandora's box of "lawfare" against Israel; a new weapon in the Palestinian arsenal that must be stopped at all costs.

However, positions castigating Palestinian membership in the ICC are premised on a flawed understanding of how the Court functions and a failed appreciation for the role it plays in the world.

In seeking to prevent Palestinian membership in the Court, critics are doing the ICC a disservice by tarnishing it as a quasi-nefarious institution, whose powers must be resisted as it seeks to employ its sinister motives. This could not be farther from the truth. The ICC is not a weapon hovering over us, an ideological foe, or a stumbling block to securing our foreign-policy objectives. In fact, it is the opposite.

The ICC is an institution, the culmination of a movement that began in the ashes of the Second World War, whose purpose is to ensure that when it comes to perpetrators of war crimes, crimes against humanity and genocide, accountability trumps impunity. It is a permanent testament to the idea and pursuit of global justice.

Surveying the cases before the ICC one is confronted by masterminds of the genocide in Darfur, commanders who relied on child soldiers and perfected the use of rape as a weapon of war in the Democratic Republic of the Congo, and those who engineered post-election violence in Kenya and the Ivory Coast, among others.

Israeli and American fears that the Court would turn into a political institution in how it takes on cases, a primary reason why neither state has joined the Court, have proven to be unfounded. When I was researching this very topic in Israel in 2008, Israeli law professor Yoram Shachar told me, "Has the prosecutor gone completely off or behaved irresponsibly in the way some have predicted? The answer is absolutely not." Its conduct since then is a further affirmation of that statement and there is no reason to think that the ICC's second decade will be any different.

By virtue of it being "international," those attempting to prevent Palestinian membership inherently and misleadingly equate the ICC with the hyper-political UN General Assembly. The Court's opinions are legal, not political.

Another misconception revolves around the ease with which the ICC can launch an investigation, the first step to an Israeli in The Hague. The ICC is meant to be a court of last resort, not one that usurps national jurisdiction. As such, per article 17 of its statute, it can only investigate situations where the home state is either unwilling or unable to carry out its own investigation into the alleged situation.

Israel's robust military investigation system and judicial oversight suggests that this would be a difficult hurdle for the ICC to overcome, posing a major obstacle to any ICC investigation into Israeli conduct.

Another point critics forget is that the ICC is a double-edged sword. Palestinian membership in the ICC also subjects Palestinians to the Court's jurisdiction. Any state party to the Court, including Canada, could refer a situation to the Prosecutor requiring it to investigate the Palestinians' indiscriminate launching of rockets into Israeli towns and cities. It would also be far less difficult to ascertain that the Palestinian Authority is unable or unwilling to conduct its own investigations than its Israeli counterparts.

Last, there is a very simple way for Israelis, or anyone else, to avoid prosecutions before the ICC: don't commit war crimes, crimes against humanity, or genocide. The ICC does not preclude a state from defending its territory and citizens. It does not prevent Israeli military action.

Those critics who argue against Palestinian membership in the ICC and who view it as a step in the wrong direction undermine the institution and call into question their commitment to its goals and objectives, which deserve support devoid of political considerations.

Palestinian membership in the ICC, and for that matter Israeli and American membership, is further affirmation of the Court's values. That is to be celebrated, not lamented.

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