Thursday, February 5, 2009

ICC to go to Gaza?

The Los Angeles Times' Sebastian Rotella reports, from Madrid, that Luis Moreno Ocampo said yesterday the Office of the Prosecutor of the International Criminal Court "will examine requests to investigate alleged war crimes during the recent combat in the Gaza Strip," about which we've posted.
Report of such an inquiry -- no official statement yet appears at the ICC website -- provokes immediate questions of international law and practice, among them:
► Last week the Palestinian Authority accepted the ICC's jurisdiction, according to Rotella. Even so, is it, for purposes of the Rome Statute of the ICC, a "state" that may become a "party" and so refer a situation on its territory?
Israel's Foreign Ministry gave the Times this categorical "no" to the question:
'The ICC charter is adhered to by sovereign states, and the Palestinian Authority has not yet been recognized as one, so it cannot be a member. It doesn't mean anything except that it's a good propaganda stunt.'
Palestinian Authority's Justice Minister, Dr. Ali Khashan, begged to differ:
'We have the fundamentals of a state and we have met all conditions required from a state. We have been demanding these rights for a long time, but no one has paid attention to us. Now we have decided to go to the ICC with this matter as a first step toward getting our rights through legal means.'
The debate entails questions of ICC statutory interpretation, and promises much pondering of the declaratory and the constitutive theories of statehood.
► As a practical matter, one has to ask what this announcement will mean for U.S. attitudes about the ICC. Softening of opposition was apparent even in the Bush Administration. As a candidate now-President Barack Obama pledged to call together experts to explore whether the United States might join the court. Just Monday, a high-level Task Force of the American Society of International Law called for a U.S. "policy of positive engagement" with the ICC. Detailed recommendations were set out by the Task Force, chaired by Patricia Wald, former judge of the International Criminal Tribunal for the Former Yugoslavia and former Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, and William Howard Taft IV, former State Department Legal Adviser; other members: former U.S. Supreme Court Justice Sandra Day O’Connor, Johns Hopkins School for Advanced International Studies Professor Ruth Wedgwood, former U.S. Rep. Mickey Edwards, Vanderbilt Law School Professor Michael A. Newton, former International Court of Justice President Stephen M. Schwebel, and former Deputy Prosecutor of the ICTY David Tolbert. Its report is welcome and timely -- and may prove an essential counterpoint criticism sure to come from some U.S. corners as a result of Moreno Ocampo's reported decision to examine conduct involving Israel.

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