George Fletcher
The New York Times (Opinion)
July 22, 2009 - 12:00am

Prosecutor Luis Moreno-Ocampo deserves great credit for having led the International Criminal Court from its birth pangs to its present position, where it commands global respect.

The success of the I.C.C. runs deeper than the numbers of those who have or have not ratified the Rome Statute creating it. Though China and the United States, among others, have not ratified the statute, they did abstain from the U.N. Security Council’s referral of the Darfur situation to the court, which means that they implicitly registered approval for the court to investigate and prosecute war crimes in Sudan.

Unfortunately, we have never had implicit approval of the court’s jurisdiction from some of the regions where we need it the most. For starters, take the Middle East crises and the controversy about the tactics used by both sides in the recent war in Gaza.

Mr. Moreno-Ocampo reported in an op-ed article in the International Herald Tribune on July 2, 2009, “This year, the Palestinian National Authority accepted the jurisdiction of the court.” Since the P.A. is not a state and could not ratify the Rome Statute, the prosecutor must have been referring to the special procedure under the statute by which a “state not a party to this statute” may file a declaration accepting the jurisdiction of the court with respect to “the crime in question.”

On Jan. 29, 2009, the “Minister of Justice of the Government of Palestine” addressed a letter to the I.C.C. asking to accept the jurisdiction of the court for events that had transpired shortly before that in Gaza. Mr. Moreno-Ocampo wrote back with specific reference to the war the Israelis called “Operation Cast Lead.” Now the question is pending whether the office of the prosecutor will in fact investigate alleged war crimes committed in Gaza.

The legal reasons for the I.C.C. not to get involved are obvious. The statute requires a declaration by a “state” to accept jurisdiction. Neither Gaza nor the Palestinian National Authority is anywhere near the status of a state. But even if the prosecutor ignored this “technicality,” another deeper consideration should prevent him from inquiring further.

Under the accepted reading of the Rome Statute, acceptance of the jurisdiction of the I.C.C. with respect to the “crime” implies an investigation of both sides and their contribution to the occurrence of criminal offenses. It would be impossible to investigate alleged Israeli crimes, such as shooting at civilian targets, without also investigating alleged Palestinian crimes, such as using civilians as human shields and firing rocket indiscriminately at civilian populations.

No one knows how broadly the “crime” in question should be construed. It could conceivably extend in time to include the crime Palestinians have committed by using suicide bombers to kill innocent Israeli civilians on dozens of occasions in past years.

So far as we can tell from the exchange of correspondence, no one explained the implications of their filing to the Palestinians.

When we see this problem in context, we can understand why the Rome Statute restricted this special procedure to full-blooded states. Only states realize that they have rights and bear responsibility. A group that thinks of itself primarily as victimized refugees, like the Gazans or the Palestinian National Authority, is more likely to believe that it can embarrass and threaten Israel without itself being exposed to reciprocal dangers.

Even if the Palestinians still wanted to proceed, the I.C.C. would be legally required to conclude that Israel is unwilling or unable to investigate alleged war crimes on its own. For the I.C.C. prosecutor to decide that Israel is acting in bad faith in conducting its own investigations would be an insult to one of the leading democracies in the Middle East with serious international ramifications.

The most the prosecutor should do is issue a statement expecting a report from both the Palestinian and Israeli authorities by a certain date.

If the I.C.C. does accept jurisdiction, it is bound by its statute to investigate not the responsibility of states, but of individuals. There is good reason for that: Individuals are presumed innocent.

But there is no presumption of innocence in international affairs. For good or for ill, states bring their history with them. The Israelis, because they are constantly subject to criticism on legal and humanitarian grounds, enjoy nothing even close to a presumption of innocence.

Mr. Moreno-Ocampo must ignore the reputations of Israel and Gaza, both of which might appear to be bad guys in some eyes, and focus on specific suspects for specific crimes. If there is one, Palestinian or Israeli, who is not being investigated, then perhaps the I.C.C. prosecutor should intervene.

But to avoid offense to both sides, any investigation should focus only on individuals who are fully protected by the presumption of innocence.


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