The International Criminal Court of Justice [CORRECTED]
[CORRECTION BELOW IN COMMENTS]
There’s a debate raging in the comments section of my post Darfurther Nonsense LX over my throwaway line about the ICJ (or ICC):
“They’ve never heard a complaint against Israel they haven’t embraced.”
Overlooking the point of the post, namely that the ICJ has warned the UN not to ignore or excuse genocide in Sudan—surely an important point to consider, especially when member states on the Security Council are on the verge of doing just that—a couple of pedantic readers have taken me to task for not citing incontrovertible truth of that statement (and for employing a double negative).
Eager to satisfy every customer, I happily complied:
However, alongside Israel’s support for the aspirations of the court, Israel has concerns as to how effectively these will be achieved through the court as it has been constituted. A major concern is that the court will be subjected to political pressures and its impartiality will be compromised. Israel has recently witnessed many international bodies, established for the highest goals such as protecting human rights and fighting racism, cynically abused and turned into political tools. Clearly, the court could only be effective if it remains scrupulously impartial. Regrettably, there are already some troubling indications that this impartiality may be compromised:
Rewriting principles of international law - and inventing new crimes: While the court was intended to address the crimes which had been recognized as being the most serious crimes in international law, in practice the statute of the court frequently fails to reflect those crimes accurately.
For Israel, the clearest example of distorting existing principles of international law, as part of a political agenda, is the inclusion as a war crime of: “the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies”. This particular offense represents neither a grave breach of the Fourth Geneva Convention, nor does it reflect customary international law. The inclusion of this offense, under the pressure of Arab states, and the addition of the phrase “directly or indirectly,” is clearly intended to try to use the court to force the issue of Israeli settlements without the need for negotiation as agreed between the sides.
Selective lists of crimes: The list of crimes included in the court’s statute is highly selective. Offenses such as terrorism and drug-trafficking are not included, because of political disputes over their definition and scope. The paradoxical result is that a state acting against acts of terrorism may find itself under the scrutiny of the court for the way it exercises its right of self-defense, while the terrorists themselves are outside the court’s jurisdiction.
Appointment of judges: One area in which Israel fears that political discrimination is likely is the appointment of judges to the court. Such appointments are, according to the statute, to be made having consideration to “equitable geographical representation.” This formula reflects the standard mode for elections in UN organs based on the UN regional groups system. As Israel is the only UN member state which is not accepted as a full member of any of the regional groups in the system, it seems that no Israeli candidate - however competent - could be elected as judge.
The extensive powers of the prosecutor: In an attempt to bridge the gaps between civil and common law systems, the court has adopted a hybrid approach in which the prosecutor has extensive powers, including to initiate proceedings on his or her own initiative. Israel is concerned that these far-reaching powers are inconsistent with checks and balances necessary in any legal system and leave the role of the prosecutor open to potential abuse.
But that wasn’t good enough for our correspondents (and there’s still the matter of that damned double negative).
The farce currently playing out in the Hague, where the so-called International Criminal Court of Justice is deliberating over the legality of Israel’s security fence, was laid bare by the suicide bombing in Jerusalem on Sunday, 2/22/04. A member of the Al Aksa Martyrs Brigade, an integral part of Yassir Arafat’s Fatah faction, killed eight people and wounded more than 50 aboard a Jerusalem bus.
Demonstrating the duplicity for which he’s famous, Arafat condemned an attack that he himself was responsible for. And only one day after this atrocity, he and his henchmen, enlisting the help of sympathetic leftists from Israel and beyond, launched a “Day of Rage” to protest the building of the security barrier.
Adding insult to injury, all of this took place against a backdrop of Israeli concessions. The Israeli Defense Forces had announced on Saturday, 2/21/04, that workers would start dismantling a five-mile section of the fence, which the Palestinians alleged was separating their communities. As always, Palestinian leadership dismissed the gesture, insisting on the dismantling of the entire fence or nothing at all.
…
The International Criminal Court of Justice (ICJ) is an arm of the UN General Assembly, which has proven itself to be unequivocally anti-Israel and pro-Palestinian. Indeed, Secretary-General Annan’s report to the ICJ did not describe a single terrorist act against Israelis, but instead painted a picture of blameless Palestinians suffering under human rights abuses. Even more outrageously, relatives of Israeli terrorism victims were not allowed to take part in the proceedings. But the hollow shell of the number 19 Egged bus, which was destroyed along with its passengers in a suicide bombing a month ago in Jerusalem, sat across the street from the court, a stark reminder of the missing voice in the equation.
The meaningless hearings were attended by such human rights defenders as Sierra Leone, China, Algeria, Saudi Arabia, and Cuba, all of whom argued against Israel’s right to defend itself.
I love “teachable moments”, don’t you? There’s a lot more background here, if you’re really interested (here’s a taste):
And why should the Court single out Israel’s actions? Has it ever ruled on the dispute between India and Pakistan over Kashmir or the conflict between Greece and Turkey over Cyprus or any of the dozens of other international border disputes?
India, Saudi Arabia, and Turkey voted to refer the Israeli fence to the ICJ even though each has built their own barriers. India is just completing a 460-mile barrier in Kashmir to halt infiltrations supported by Pakistan; Saudi Arabia built a 60-mile barrier along an undefined border zone with Yemen to halt smuggling of weaponry; and Turkey built a barrier in the southern province of Alexandretta, which was formerly in Syria and is an area that Syria claims as its own. Ironically, after condemning Israel’s barrier, the UN itself announced plans to build a fence to improve security around its New York headquarters.
How many Israeli buses have been bombed by Palestinian terrorists since the fence was built, by the way? Without a bulldozer, it’s gotten significantly more difficult to kill Jews in Israel.
So, I feel I’ve done my job. Perhaps my interlocutors can do their part and cite one decision by the ICJ—just one—favorable to Israel. We would be grateful for the edification, and I would publicly withdraw (or at least amend) my earlier statement.
Midwest McGarry said,
December 5, 2008 @ 12:41 pm
Well this is just an old fashioned “bait and switch.” The entire original post and “throwaway” line were about the International Criminal Court. Specifically they were about the definition of war crimes, how countries acquire standing before that relatively new court, etc.
It is an important argument because the debate about American involvement in the ICC is likely to change with the new administration, and it is important because the court (being new) is just now creating precedents which will shape how the court works.
I will also add as an aside that the creation of an ICC to try war crimes has been championed since the end of WW2 and the Nuremberg Trials. This permanent court (rather than the temporary tribunals created in various places around the world) dealing with genocide and ethnic cleansing has been a solid pillar of “never again” again arguments by good people of all faiths now for 60 years.
But now you have done a sleight-of-hand trick and made the discussion about the International Court of Justice (IJC)…. a very old institution with tons of good and bad decisions on the books… and one that is largely ignored by the world. Largely because it has no teeth.
Note that the ICC has very real teeth. It can issue indictments, several real live people are sitting in jail cells in The Hague waiting for their trials to conclude, and the ICC has sent others to prison after conviction.
Sooooo… what is the topic of this conversation? ICC, ICJ, IMF, ICBM, IAEA, iTunes, ISS?
Bloodthirsty Liberal said,
December 5, 2008 @ 12:52 pm
Via email:
The international criminal court has never embraced any complaints against Israel. There are four open cases at the ICC. Darfur, Northern Uganda, CAR, and DRC. All complaints against Israel (and the United States for that matter) have been summarily rejected by the ICC’s prosecutor. This is the opposite of “never heard a complaint against Israel they haven’t embraced.” You are wrong. Please correct your post.
Mark Goldberg
www.undispatch.com
Midwest McGarry said,
December 5, 2008 @ 12:56 pm
I mistyped a moment ago. The acronym for the International Court of Justice is ICJ.
The ICJ was created in 1946 and is sometimes referred to as “The World Court.” It ONLY hears cases where one country is challenging another country. It does not hear cases about individuals or war crimes or anything like that. On the Web here:
http://www.icj-cij.org/homepage/index.php?p1=0
The ICC, the International Criminal Court, was created by a global treaty in 1998. The treaty did not go into force until 2002 and I believe they didn’t hear their first case until 2003. They ONLY try individual people accused of genocide, war crimes, and crimes against humanity. By treaty, the ICC can only act if the crime was committed in a place with no judicial apparatus or if the country where the crime was committed decides to send the case to the ICC. On the web here:
http://www.icc-cpi.int/home.html
There is no such beast as The International Criminal Court of Justice.
Good pages about these two courts are also on Wikipedia
Bloodthirsty Liberal said,
December 5, 2008 @ 1:10 pm
I stand guilty as charged of having confused the International Criminal Court (ICC) with the International Court of Justice (ICJ) in the above post.
While I am happy to have re-exposed the repellant acts of the ICJ (and the UN), I was wrong to have ascribed them to the ICC.
Israel’s suspicion and rejection of the ICC, however, remains.
I apologize for the error, and thank these readers for correcting my mistake.
PS: McGarry,you’ve repeatedly written IMF, when I believe you meant MFA. Unless you really meant to disparage the International Monetary Fund (or Western Asset Inflation Management Fund Inc.), it’s an understandable mistake. At least I’m in no position to criticize.
Midwest McGarry said,
December 5, 2008 @ 1:35 pm
BTL,
Thank you for the correction.
I made one reference to the IMF… in the very last line of my post stamped 12:41. I was poking a little fun at confusing all institutions starting with the letter I. So yes, I did mean International Monetary Fund.
I think a different commentator also made a reference to IMF which I frankly did not understand.
Moving on.
Bloodthirsty Liberal said,
December 5, 2008 @ 3:39 pm
Someone mentioned the Nuremberg Trials and I did a quick search. I wondered how many people were executed for the crime of murdering 6 million Jews, and God knows how many homosexuals, political prisoners, Romas, etc. You can see for yourself. I counted 13 in all.
http://www.law.umkc.edu/faculty/projects/ftrials/nuremberg/NurembergIndictments.html
I mention this because I am deeply skeptical of all of these international bodies - the Hague, the UN, the ICC, the ICJ, whatever. My opinion is that you can kill 6, 7, or 8 million people and pretty much get off with a slap on the wrist - unless you are part of the unfortunate 13. I do not believe that it is wise for Israel, or any other nation for that matter, to depend on the good intentions of lawyers or politicians from foreign nations.
- Aggie
Tony said,
December 5, 2008 @ 3:55 pm
Not to make light of the situation, but I can’t find it on the news so I want to ask people here if they know anything. Did the Jews blow up Mumbai too? Or was that another Bush insider job?
Barb said,
December 5, 2008 @ 6:44 pm
Hey Tony:
http://memri.org/bin/latestnews.cgi?ID=SD214008
No that I accept this as a legit statement, but the myth is being floated out there. In otherwords - consider the source.
Kevin Jon Heller said,
December 5, 2008 @ 7:00 pm
13 additional Nazi defendants were executed for crimes against humanity committed against Jews by the Nuremberg Military Tribunals, which were international tribunals that applied international law, though their staff was all American and they were held in the US zone of occupation. Unlike the IMT, which focused largely on mistreatment of POWs and crimes against peace, the Holocaust was front-and-center throughout the twelve NMT trials.
By the way, I realize it’s a throwaway line, but The Hague is a city, not an organization.
Bloodthirsty Liberal said,
December 5, 2008 @ 8:58 pm
Yes, I realize that der Hague is a place, but also loosely referred to as the court, isn’t it? And whether they executed 13 or, as someone claimed, a grand total of 26, the Germans executed 6 million Jews and millions of others. They wiped out roughly one half of the Jews in Europe, didn’t they? And in the end, the camp guards, the sadistic doctors and nurses, the makers of poison gas, the train drivers, the people that forced others to dig their own graves all melted back into the landscape to live out their lives. That’s the truth, isn’t it? Would you trust the Europeans or for that matter anyone else to pass judgment on the descendants of those who survived the hatred in Europe or the ongoing hatred coming from large parts of the Muslim world?
The point is that it is crazy to trust your safety and security to people who do not necessarily care whether you live or die, but instead care about their own issues and their own people. It is a shame that the world is the way it is, but wishing it was different doesn’t make it so. We also wish that Pakistani terrorists hadn’t attacked Mumbai, we wish that Palestinian terrorists hadn’t murdered over a thousand people in Israel, we wish the September 11th terrorists hasn’t murdered almost 3,000 Americans. We can wish and we can hope, but it is foolish to trust your future to other nations and international courts. And it is really, really arrogant to assume that “this time it will be different… we are somehow better now than we were then”. That is the underlying assumption of the world court, the United Nations, and similar organizations. They aren’t worth a bucket of warm spit.
- Aggie