Legal blogosphere erupts over ICC’s inquiry into Gaza war

At Just Security, Opiniojuris, Lawfareblog and other blogs, serious thinkers and even major policy-makers are weighing in.

By YONAH JEREMY BOB
International Criminal Court prosecutor Fatou Bensouda speaks with her deputy, James Stewart, at an ICC hearing in March 2014 (photo credit: REUTERS)
International Criminal Court prosecutor Fatou Bensouda speaks with her deputy, James Stewart, at an ICC hearing in March 2014
(photo credit: REUTERS)
There is a new front on the Israeli-Palestinian conflict. The hot debate over whether it was good or bad, legal or illegal for the Palestinians to go after Israeli soldiers and war policy-makers before the International Criminal Court has gotten a suffocating volume of responses from diplomats and in traditional media outlets. But some of the most interesting debating is going on in the still relatively new legal blogosphere.
At Just Security, Opiniojuris, Lawfareblog and other blogs, serious thinkers and even major policy-makers are weighing in. The most prominent writer to weigh in so far is Luis Moreno Ocampo, the founder and former top ICC prosecutor, as first reported (outside of the blogosphere) in The Jerusalem Post.
Ocampo’s post, in retrospect, predicted (or according to some started the rollout for) current ICC Prosecutor and one-time Ocampo deputy Fatou Bensouda’s recognition of the State of Palestine only a few days later.
His post also looked further down the line, offering “friendly advice” – which many in Israel and in the blogosphere have not regarded as friendly – to Israel about how best to handle potential war crimes investigations.
Criticism of Ocampo’s post has focused on a number of fronts. Alan Dershowitz posted a response to Ocampo mainly attacking his post and Bensouda’s decision on particular legal grounds to argue against their acceptance of Palestine as a state.
Dershowitz asked what this new state’s borders are, and how and where the ICC would define borders for where to define Israeli settlements as illegal, since the issue is still in dispute between Israel and the Palestinian Authority.
He asked if the ICC would consider Gaza part of Palestine, and if so, if PA leaders in the West Bank would be held accountable for Hamas’s indiscriminate rocket fire.
Next, the famed lawyer said that Ocampo’s statement that if Israel investigates its own war crimes, it has nothing to worry about, ignores reality.
Dershowitz said that everyone knows Israel is investigating war crimes allegations against its soldiers, satisfying that question.
He added that this means that the only relevant question is whether the ICC might decide to undermine the legitimacy of Israel’s investigations.
Dershowitz said that in that case, essentially no nation’s investigations would pass the ICC’s test either, rendering the idea that it is a court of last resort meaningless.
Another responder to Ocampo and those supporting the Palestinians move toward the ICC, former IDF International Law Division attorney and former Israeli deputy UN legal adviser Nimrod Karin, wrote a critique focused on the idea that Bensouda, UN Secretary-General Ban Ki-Moon and ICC Assembly of State Parties president Sidiki Kaba had acted so quickly on the complex statehood issue that there was a heavy cloud of having ignored law in favor of politics over their decision.
Noting that Kaba acted without a debate or vote of the ASP and a parallel case where the UN required such a debate and vote for Namibia to sign on to a treaty, Karin said that “we’re left wondering what explains the evolution in the UN legal position over the years.”
Karin said that even as Bensouda may be regarded as a serious professional, international lawyers, especially those at the front of political conflicts, “are political animals.”
He also critiqued Ocampo’s argument that it would be viable for Israel to, under the gun from the ICC, dismantle portions of the settlements and step away from claiming their legality.
Karin said that this was ignoring the reality that no state, and certainly not Israel, would make any kind of admission of illegality in the context of a criminal legal proceeding (possibly in contrast to political accommodations without a legal threat, such as US apologies for treatment of Native Americans and Japanese Americans.) Most importantly, Karin declared the PA’s move “lawfare” and disputed Ocampo’s portrayal of the PA’s actions as encouraging signs of moderation.
While this particular debate occurred mostly on Just Security, it moved on to Opiniojuris where well-known international expert Kevin Jon Heller went after Karin for brushing off the PA’s actions as “lawfare.”
Heller said that “lawfare” is just the name that opposing sides give to the other side’s legal actions which they disagree with, and ignores the real issues.
He also called the PA’s move toward the ICC a sign of “bravery” in that once it referred the “situation” of the conflict with Israel to the ICC, it “no longer has any control whatsoever” – meaning PA President Mahmoud Abbas’s acceptance of ICC jurisdiction could lead to his own investigation.
Karin then moved over to Opiniojuris and disagreed with Heller, explaining that Abbas risked only Israeli and Hamas culpability, but that he himself has no risk and is “a free rider” since the West Bank Palestinians sat out the Israel-Gaza war.
Just Security has also featured the PA’s former UN legal adviser Yousef Zeidan and experts Robert Howse, Jonathan Somer and David Luban on the issue.
Whereas in the legal blogosphere’s recent years, the Syria file and torture by the CIA have gotten a lot more attention than the Israeli-Palestinian conflict, with the ICC involved, this is probably just the beginning of the conflict, moving more to center stage.