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Tuesday, January 06, 2015

The day after

Note that's the day after the kidnapping and murder of three Israeli teens by 'Palestinian' terrorists this past summer. If that stands, it means that the kidnapping and murder would not by justiciable by the International Criminal Court.

Not that it's likely to matter. The court is likely to be institutionally biased against Israel anyway.
There is no reason to think the prosecutor or Court are eager for Israel/Palestine cases, and a lot of reasons to think they are not, given the disproportionate political headaches they entail.
Yet there is cause to think that the the Court is a most improper venue for sorting the Israeli-Palestinian conflict. Indeed, even absent any bias, the Court is structured in a way that cannot do equal justice, and is thus properly seen as a Palestinian tool against Israel. Moreover, recent statements by the Prosecutor give troubling evidence that she may be willing to replace legal analysis with the off-the-shelf views of the “international community” on the conflict.
To be clear, I think the most likely outcome from the Palestinian effort is no full investigation of either side, at least any time soon. Rather, I am trying to explain why the Palestinians see the ICC as a good bet – one more likely to break their way than not. This is important because many distinguished jurists and academics not unsympathetic to the Palestinians have warned them that they have more to loose than gain from ICC proceedings. But they went ahead anyway, which means they have a different analysis – one that I try to reconstruct here.
The Court’s track record suggests it is incapable of rendering impartial justice in an ongoing bilateral conflict. The Court is not some well-established, Olympian seat of judgment. Rather, it is a weak, conflicted and floundering institution, beset by profound embarrassments that might affect its decision-making. It has completed only three cases, with two convictions. Most recently, it has seen two of its highest-profile matters – the only ones involving sitting heads of state – disintegrate. These were the prosecutions of Kenya’s president for election violence, and of Sudan’s president Bashir, for genocide. Both proceedings failed because of the persistent, and in the case of Kenya, subtle, non-cooperation of the target regime. (Despite their current embrace of the ICC, the Palestinians have long been on record opposing the ICC’s arrest warrant against Bashir.) The ICC has proven itself completely incapable of prosecuting a case against an unwilling regime, especially an authoritarian or illiberal one.
Read the whole thing

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