Palestine, the ICC, and the illusion of state control

Palestine's top diplomat is warning Israel that continuing with its settlement plans will lead to action at the International Criminal Court:

Palestinians have said that continued Israeli settlement in occupied areas near Jerusalem will leave it with no choice but to take Tel Aviv to the International Criminal Court (ICC) in the Hague.

Riad Malki, the Palestinian foreign minister, said on Wednesday his government's decision will largely depend on what the Israelis do with the so-called "E1" area outside the Arab suburbs of East Jerusalem.

Malki said allowing Jewish settlers into the so-called E1 zone would be "trespassing the red lines".

The Palestinians are "absolutely not going to tolerate any construction in that particular area", Malki told reporters after addressing a UN Security Council meeting on the Middle East conflict.

All the stories I've seen on Malki's comments today make a basic error about the way the ICC operates: they assume that Palestine will be able to bring Israeli activity to the attention of the court only once Palestine formally joins the court. Al Jazeera's story includes this passage:

The Palestinians are yet to join the ICC, which prosecutes charges of genocide, war crimes and other major human rights violations. They must first apply to join the court, and once a member they could refer Israel for investigation.

In fact, the Rome Statute allows non-member states to give the court jurisdiction over their territory even absent a decision to become a court member. Palestine has already attempted to do so: in the wake of the 2008-2009 Gaza War, the justice minister of the Palestinian Authority submitted a declaration purporting to give the court jurisdiction over relevant crimes committed on Palestinian soil for "an indeterminate period." 

The incorrect assumption that Palestine must somehow set the ICC in motion reflects a larger confusion about the court. Casual observers, including many journalists, tend to think of the ICC process as state-driven, akin to the International Court of Justice or the World Trade Organization. In those institutions, state action is essential to setting in motion the legal machinery.

For the most part, the ICC doesn't work that way. It is a prosecutor-driven institution. The ICC's founding document gives the prosecutor the power to initiate investigations on his or her own, assuming the court has jurisdiction. And the prosecutor has the sole discretion to decide which alleged crimes to pursue and which to ignore. The Palestinians can tell the court about any and all Israeli acts they believe are illegal--including settlements--but the prosecutor alone decides whether to pursue them and whether to bring any charges.

Threatening to take Israel to the ICC may be good theater, but it's not much more than that. Palestine has already attempted to give the court jurisdiction. It is now up to the court to decide whether that declaration has force. In April of last year--several months before the UN took up the question of Palestine's status--the prosecutor decided that he had no competence to decide whether Palestine was a state capable of granting the court jurisdiction.  But in making that decision, the prosecutor wrote this:

The Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue [of statehood]. 

As the prosecutor framed the issue, last year's General Assembly vote recognizing Palestine as a non-member state should have resolved the statehood question. The relevant issue now is not what Palestine will do, but what the court will do.

The Multilateralist

David Cameron's unsentimental EU speech

British prime minister David Cameron delivered today his long-awaited speech on his country's relationship with the European Union. He had been scheduled to speak last week but delayed due to the twin crises in Mali and Algeria. The speech's substantive message was known well in advance: Cameron called for a renegotiation of the relationship, to be followed by an eventual referendum on continued British membership.

Even with the punchline broadcast ahead of time, however, the speech was notable for its tone. For a major Western leader, Cameron struck a remarkably unsentimental note on international cooperation. Several times, he described the international realm in almost zero-sum terms:

[T]oday the main, over-riding purpose of the European Union is different: not to win peace, but to secure prosperity.

The challenges come not from within this continent but outside it. From the surging economies in the East and South. Of course a growing world economy benefits us all, but we should be in no doubt that a new global race of nations is underway today. A race for the wealth and jobs of the future....

Competitiveness demands flexibility, choice and openness - or Europe will fetch up in a no-man’s land between the rising economies of Asia and market-driven North America. [emphasis added]

In the midst of this global race for affluence and influence, the prime minister's central question was what Britain gets out of EU membership:

[W]e come to the European Union with a frame of mind that is more practical than emotional.

For us, the European Union is a means to an end – prosperity, stability, the anchor of freedom and democracy both within Europe and beyond her shores - not an end in itself.

We insistently ask: How? Why? To what end?

As Cameron acknowledged, speaking of the European Union as a simple matter of national cost and benefit—rather than as some kind of project in enlightened governance or moral mission—is unusual in European circles. For some audiences that jarring tone, and the prime minister's willingness to explicitly contemplate exit, may overwhelm the second half of the speech. Having insisted that Britain must coldly assess the EU's value, Cameron proceeded to run through several of the arguments for and against continued membership—and concluded that remaining in the EU is resoundingly in the British interest.