Int’l Criminal Court Decision on ‘Palestine’ Is a Victory for Israel and a Defeat for Amnesty International

By Patrick Goodenough | April 4, 2012 | 4:36 AM EDT

International Criminal Court prosecutor Louis Moreno-Ocampo speaks at an ICC press conference in The Hague, Netherlands. (AP Photo)

( – A decision by the International Criminal Court rebuffing the Palestinian Authority’s attempt to have Israel put on trial for war crimes is a setback not only for the P.A. but also for a so-called “lawfare” campaign waged by some non-governmental organizations (NGOs).

One of those NGOs, Amnesty International, called Tuesday’s decision by the ICC prosecutor’s office “dangerous” and charged that it opened the tribunal to charges of political bias.

Organizations that supported Israel’s position, on the other hand, argued that it was the P.A. that had sought to politicize the court in The Hague by seeking its decision on jurisdiction in the first place.

“This is a major victory for Israel in the international arena and a sound defeat for the unfounded ‘lawfare’ attack leveled against Israel,” said Jay Sekulow, chief counsel at the American Center for Law and Justice (ACLJ).

“What’s clear is that this legal assault against Israel not only lacked jurisdiction, but amounted to nothing more than an international campaign to discredit and demonize Israel,” he said.

The ACLJ and its Strasbourg-based European Center for Law and Justice affiliate made a number of submissions to the ICC prosecutor’s office arguing that “Palestine” did not meet legal criteria for statehood, and also met twice with the prosecutor.

“Lawfare” is a term used – primarily by critics – to describe efforts by activists to use international law to bring claims against states, for example attempts to have visiting Israeli political or military leaders arrested in Europe under universal jurisdiction statutes.

On Tuesday, ICC prosecutor Luis Moreno-Ocampo announced that his office lacked the authority to determine whether the P.A. self-rule area constitutes a “state.” Under the treaty that established the international tribunal, the 1998 Rome Statute, only states (or the U.N. Security Council) may file actions.

The P.A. in 2009 unilaterally declared that it was recognizing the ICC’s authority for “acts committed on the territory of Palestine since 1 July 2002.”

The move, amounting to an official request that ‘Palestine” be considered a state for the purposes of ICC jurisdiction, was a first step towards bringing war crimes complaints against Israel arising out of the 2008-2009 war against Hamas in the Gaza Strip.

During a lengthy subsequent process of examining whether the P.A. declaration met statutory requirements, the ICC received submissions from organizations and academics coming down on both sides of the argument, including the ACLJ/ECLJ in opposition, and the Palestinian rights group Al-Haq in support.

In his decision, Moreno-Ocampo effectively ceded the matter to “competent organs” of the U.N., or countries that are parties to the ICC, saying that should they resolve the legal issue then his office “could in the future consider allegations of crimes committed in Palestine.”

Amnesty International said Tuesday the prosecutor should have handed the case over to the tribunal’s judges for a ruling.

“This dangerous decision opens the ICC to accusations of political bias and is inconsistent with the independence of the ICC,” said Marek Marczynski, head of the advocacy group’s international justice campaign.

“Despite Amnesty International’s calls and a very clear requirement in the ICC’s statute that the judges should decide on such matters, the prosecutor has erroneously dodged the question, passing it to other political bodies,” he said.

The Jerusalem-based group NGO Monitor, which earlier also submitted a legal brief to the ICC prosecutor opposing the P.A. bid, called Tuesday’s decision “a key defeat for NGO ‘lawfare’ in the Arab-Israeli conflict.”

The group’s legal advisor, Anne Herzberg, said that a group of European-funded NGOs had campaigned at the ICC in support of the P.A.’s political goals, exploiting a tribunal that had been “created to punish the worst perpetrators of war crimes and mass murder.”

“The fact that the case even proceeded this far was clear legal overreaching, but it shows the strength of NGOs that lead the de-legitimization and demonization campaigns against Israel,” she said.

Herzberg hailed the prosecutor’s decision. “International arenas are routinely hijacked for political purposes, but today’s decision was markedly different.”

State Department spokeswoman Victoria Nuland said Tuesday that as far as she was aware, the U.S. government “did not take any position” on the case.

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Patrick Goodenough
Patrick Goodenough
Spencer Journalism Fellow