The ICC provision that keeps Israeli politicians up at night

One of the odd aspects of today's likely United Nations vote on Palestine is that it's less about Palestine's privileges and status at the UN than at the International Criminal Court, an institution not formally part of the UN system. Israeli and U.S. diplomats worry that the UN statehood move may either lead the ICC to reconsider the grant of jurisdiction the Palestinian authority has already submitted or that Palestine may seek to become a full ICC member state.

Palestine first sought an ICC role in the context of the 2009 Gaza conflict. At the time, Palestinians (and plenty of others) charged that Israel's ground and air offensive included either deliberate or recklessly negligent attacks on civilians. Those kinds of accusations are commonplace whenever Israel strikes. But what probably worries Israeli leaders as much as accusations of indiscriminate targeting is Article 8(2)(b)(vii). That article defines as a war crime the following behavior:

The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.

This is a particularly troubling provision for Israel because it can always investigate through its domestic institutions accusations that Israeli forces targeted civilians or did not take adequate measures to protect them (it has done so several times in the past). Under the doctrine of "complementarity", a legitimate national investigation should stop the ICC in its tracks. But Israel would have a very hard time offering a complementarity defense of its settlement policy.

So how legitimate are Israeli fears that the ICC will come calling? Mark Leon Goldberg makes a smart case here that the court has, thus far, been exceptionally cautious in what investigations it has opened. As Goldberg points out, it's not at all certain that the prosecutor would  do anything more than take a cursory look at the Palestine situation even once the jurisdictional question is clarified. The prosecutor might decide that any crimes aren't grave enough or that an investigation wouldn't serve the interests of justice. The United States, and maybe big European powers, would lean heavily on the prosecutor to reach just such a conclusion.  But the court would also face strong pressure in the other direction, not least to counter the impression that the court only has eyes for weak African states.

And there's good evidence that the court can resist political pressure, even from powerful states. In different ways, the United States, Britain, France, Russia and China all made clear to the previous ICC prosecutor their view that indicting Sudanese president Omar al-Bashir would not be helpful. He plunged ahead anyway. It's no surprise that Israel doesn't want to rely on the prosecutor's discretion.    

The Multilateralist

Beijing calls for more accountable UN Security Council

During a debate this week about the UN Security Council's working methods, China's ambassador made a plea for more focus on preventive diplomacy—and less on coercion. He also made the intriguing suggestion that an outside body ensure that the Council doesn't abuse its authority:

Li Baodong, Chinese permanent representative to the UN, made the statement at an open meeting of the Security Council on working methods.

"The Security Council should pay more attention to preventive diplomacy, make more use of peaceful means such as mediation and good offices to defuse disputes, and avoid frequent use of threats, sanctions and other forcible measures," Li said.

"An effective monitoring mechanism should also be established to avoid abusing or overstepping the Council's mandate," he added.

In the wake of NATO's Libya operation—which several Council members saw (or at least professed to see) as an abuse of the body's authorization—others have expressed similar sentiments. In fact, there already is an international mechanism that could play that supervisory role: the International Court of Justice. As the UN's principal legal arm, it has a strong claim to exercise judicial review over Council action. And on a few occasions, the ICJ has tiptoed toward that role but it has never fully embraced it (for a recent examination of the court's role, see this paper by Matthew Happold).

It's doubtful the ICJ is what China's ambassador had in mind; China doesn't accept the ICJ's jurisdiction and has never been directly involved in a case.