Saturday, August 9, 2014

The US, Palestine and the International Criminal Court

It was reported lately that Netanyahu had approached US lawmakers to help Israeli political and military leaders evade war crimes charges, as Palestine is likely to accept the jurisdiction of the International Criminal Court.  

Can the US really help Israel?

Firstly, as far as Palestine is concerned, the fact that the US is a non-Party to the Rome Statute of the International Criminal Court should be viewed positively.  

The US is not a member of the Assembly of States Parties to the Rome Statute, which bars it from having “direct influence” over the Court. But this, of course, does not imply that the ICC Judges and Prosecutor do not function independently. This is merely to say that the US is completely outside the ICC. Furthermore, the US does not contribute to the budget of the Court, and therefore cannot “blackmail” it, or impose financial “sanctions” on it. 

In this respect, it is worthwhile reminding how the US sanctioned UNESCO when it admitted Palestine as a full member in 2011. The US cannot do that with regard to the ICC.

Secondly, in case Palestine accepted the jurisdiction of the Court, it is possible that the US would invoke Article 16 of the Rome Statute, to (temporarily) shield Israeli leaders from prosecution by the ICC - as briefly illustrated in a previous post.  

Thirdly, the US might exert pressure on other States in order not to cooperate with requests by the Court, including arrest and surrender requests. However, all States Parties to the Statute are under a general obligation to cooperate fully with the Court in its investigation and prosecution of crimes - the only exception being Article 98 of the Statute, where the requested State itself would be required to act inconsistently with its obligations under international law. 

In conclusion, the US cannot offer much protection to Israeli leaders in this regard.

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