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Creating Countries at the ICC

In 2002, JINSA opposed the creation of the International Criminal Court (ICC). (JINSA Reports #265 & #266). The ICC is not required to provide Americans the basic legal protections guaranteed to us by our Constitution, and has nebulous political goals including “to achieve justice for all,” and “to end impunity (of national leaders).” We called it a “playground for mischief” and “UN groupthink,” and said Israel and the United States would be the primary targets of its political judges.


In 2002, JINSA opposed the creation of the International Criminal Court (ICC). (JINSA Reports #265 & #266). The ICC is not required to provide Americans the basic legal protections guaranteed to us by our Constitution, and has nebulous political goals including “to achieve justice for all,” and “to end impunity (of national leaders).” We called it a “playground for mischief” and “UN groupthink,” and said Israel and the United States would be the primary targets of its political judges.

But a few weeks ago, we found ourselves citing ICC prosecutor Luis Moreno-Ocampo on the doctrine of proportionality:

The death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. [Military objectives are] those which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers definite military advantage.

Forbidden, he wrote, would be:

An intentional attack directed against civilians or an attack launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage… (or) intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects… clearly excessive in relation to the concrete and direct overall military advantage anticipated.

Israel met the first condition; Hamas the second. And since Moreno-Ocampo wasn’t writing about Israel and Gaza, we thought we were safe citing him. We should have known better.

Having first said the ICC had no jurisdiction over Israel (which, like the United States, is not a signatory to the treaty that established the court), Moreno-Ocampo told The Times (UK) that he is considering “the case for Palestinian jurisdiction over alleged crimes committed in Gaza.” Palestinian groups say Gaza is a de facto state, despite its lack of recognized status. Moreno-Ocampo has agreed to make a finding of status to sue.

If he makes “Palestine” a country, will he also snap his fingers and end the Hamas-Fatah civil war? Otherwise, how will he decide who gets to exercise the new status? It matters in part because Fatah has just accused Hamas of war crimes, publishing a list of people killed, maimed, beaten or tortured BY HAMAS in Gaza. The Palestinian news agency Ma’an cites a senior official saying Fatah is responsible for, “initiating the proper legal procedures against those responsible for the crimes and anyone who gave the directives for murder or torture. These people must be brought to justice.”

In the International Criminal Court?

The ability of the ICC to make legal trouble is clear. If it arrogates to itself the ability to create countries (or un-create them if it believes Palestine is entitled to the space occupied by Israel) we fear no one will put the breaks on internationalism run amok.