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.
A Palestinian woman shouts anti-Israel slogans on the rubble from her home after the latest Israeli airstrikes in the town of Rafah in the southern Gaza Strip November 16, 2012. Israeli Defence Minister Ehud Barak expanded the call-up of reserve soldiers, a spokesman said, as Israel pushed ahead with a major offensive against militants in the Gaza Strip.(SAID KHATIB/AFP/Getty Images)
An Israeli solider atop of an armored personnel carrier close to the Israel Gaza Border, southern Israel,Thursday, Nov. 15, 2012. Israel's prime minister says the army is prepared for a "significant widening" of its operation in the Gaza Strip. Benjamin Netanyahu told reporters on Thursday that Israel has "made it clear" it won't tolerate continued rocket fire on its civilians. (AP Photo/Ariel Schalit)
A picture taken from the southern Israeli Gaza border shows a rockets being launched from the Gaza strip into Israel on November 16, 2012. Israeli warplanes carried out multiple new air strikes on the Palestinian territory, including several hits on Gaza City, the third day of an intensive campaign which the military has said is aimed at stamping out rocket fire on southern Israel. (JACK GUEZ/AFP/Getty Images)
KIRYAT MALACHI, ISRAEL - NOVEMBER 16: (ISRAEL OUT) A woman sits in her car as a tank on a flat-bed truck is parked next to her at a gas station on November 16, 2012 in Kiryat Malachi, Israel. According to reports, Israeli troops are massing at the border of the Gaza Strip and Israel has begun drafting 16,000 reserve troops. Palestinian rocket attacks have followed a series aerial strikes on targets in Gaza launched by Israeli Defense Forces (IDF) including one which killed a top military commander of Hamas. (Uriel Sinai/Getty Images)
Relatives grieve during the funeral for Itzik Amsalem, 49, one of the three people who died in a rocket attack on November 16, 2012 in Kiryat Malachi, Israel. Three people were killed in Israel November 15, after a building was hit by a rocket fired from the Hamas-ruled Gaza Strip. Palestinian rocket attacks followed a series aerial strikes on targets in Gaza launched by Israeli Defense Forces (IDF) which killed a top military commander of Hamas. (Uriel Sinai/Getty Images)
ISRAEL OUT - Smoke rises after an Israeli air strike in the Gaza Strip, Wednesday, Nov. 14, 2012. Palestinian witnesses say Israeli airstrikes have hit a series of targets across Gaza City, shortly after the assassination of the top Hamas commander. Hamas security officials say two Hamas training facilities were among the targets in the Wednesday afternoon bombings. (AP Photo/Edi Israel)
A Palestinian youth wearing a late Palestinian leader Yasser Arafat portrait around his head throws stones as they clash with Israeli security forces in the Jalama checkpoint in the West Bank near Jenin city, on November 16, 2012. Thousands of angry Palestinians rallied across the West Bank, urging Hamas militants to 'bomb Tel Aviv' as Israel pursued a relentless air campaign on the Gaza Strip. (SAIF DAHLAH/AFP/Getty Images)
An Israeli soldier fires a tear gas canister towards Palestinian stone throwers on route 60, mainly used by Israeli settlers, in the West Bank village of Beit Omar, on November 16, 2012 . Thousands of angry Palestinians rallied across the West Bank, urging Hamas militants to 'bomb Tel Aviv' as Israel pursued a relentless air campaign on the Gaza Strip. (HAZEM BADER/AFP/Getty Images)
Palestinian youths wearing the traditional chequerred keffiyeh attend a rally held in the Palestinian refugee camp of Ain el-Helweh on the outskirts of the southern Lebanese city of Sidon on November 16, 2012, against Israel's military operation in the Gaza Strip. Thousands of people across the Middle East protested on Friday against Israel's aerial bombardment of the Gaza Strip, with some chanting 'death to Israel' and others calling for the bombing of Tel Aviv. (MAHMOUD ZAYYAT/AFP/Getty Images)
Israeli soldiers rest inside a large concrete pipe used a as shelter for rockets fired by Palestinian militans in the Gaza Strip, on November 16, 2012 at the Israel-Gaza Strip border . Israeli officials said the Jewish state was preparing to launch its first ground offensive in four years into the Gaza Strip and the army started calling up 16,000 reservists.
The mother of 10-month-old Palestinian girl, Hanen Tafesh, killed the day before in an Israeli air strike, is comforted by her husband and relatives as she mourns before her funeral in Gaza City, on November 16, 2012. Israeli warplanes carried out multiple new air strikes on the Palestinian territory, including several hits on Gaza City, the third day of an intensive campaign which the military has said is aimed at stamping out rocket fire on southern Israel. (MARCO LONGARI/AFP/Getty Images)
The trail of an Israeli missile launched from the Iron Dome defence missile system, used to intercept and destroy incoming short-range rockets and artillery shells from Gaza, is pictured from the southern Israeli city of Beer Sheva along the Gaza border in response to a rocket launched from the nearby Palestinian territory on November 15, 2012. Israel will take 'whatever action is necessary' to defend its citizens from Palestinian rocket attacks, Prime Minister Benjamin Netanyahu said as the military pressed a massive operation in Gaza. (JACK GUEZ/AFP/Getty Images)
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