Simmer Down, Y’all

Dear Internets,

Yes, the UN General Assembly’s approval of “non-member observer state” status for Palestine is big news. No, it does not mean that Israeli leaders should be keeping an eye out for ICC investigators.

Palestine’s new status as a sorta-kinda-maybe-state does mean that it can now join the ICC. But, as Mark Goldberg points out, if Palestine tries again to refer the situation to the court, it will be up to Chief Prosecutor Fatou Bensouda first to decide whether to open an investigation, and then whether to issue charges. At either stage, she might decide that the evidence doesn’t support proceeding, or that pursuing a case is not “in the interests of justice” (Rome Statute, Art. 53). That last one gives her broad discretion to decline to proceed, which could be useful cover if, say, she felt that it was not a real swell idea for a young institution in a politically precarious position to piss off the superpower by going after one of its most important allies. You know, hypothetically.

Additionally, the Prosecutor might conclude that she is blocked by Israeli court proceedings covering actions in Palestine (Rome Statute, Art. 19). The ICC’s jurisdiction is complementary, which means it is only empowered to hear cases that the relevant state judicial system(s) are “unwilling or unable” to prosecute. Unlike many of the states who make up the ICC’s current caseload, Israel has a competent and active judiciary that has heard numerous cases arising out of policy towards the Occupied Territories. Determining that past judicial precedent suggests an “unwillingness” to prosecute would require a complicated and messy analysis that ICC is ill-equipped to undertake.

Finally, even if the Prosecutor were willing to proceed, it is not clear what events would be eligible. The ICC’s potential temporal jurisdiction over a state’s territory starts from the day the Rome Statute entered into force for that state. For many states, that’s the day of the court’s birth, July 1, 2002, but for those states that signed the treaty after the court started its work, it’s later.

So if Palestine joined the ICC tomorrow, a straightforward interpretation of the court’s jurisdictional provisions would say that the ICC could only prosecute crimes that take place starting from December 2012. There’s a possible Hail Mary argument invoking the Eichmann precedent that new states have retroactive jurisdiction over crimes against their citizens, but there’s no reason to think that this could be passed on to the ICC. The court only inherits its members’ jurisdiction over crimes committed by their citizens, or on their territory, not crimes committed against their citizens. And extending the ICC’s jurisdiction over Palestine back in time would effectively strip Israel of jurisdiction over a portion of its territory during a time in which it was the uncontested (with regard to formal institutions) sovereign. Additionally, the fact that Palestine’s “stateness” is likely to remain a bit of an open question makes any kind of retroactivity more of a stretch.

So there.

[Late-breaking news: Kevin Jon Heller has a new post up at Opinio Juris expounding a very different view. He cites Côte D'Ivoire's April 18, 2003 acceptance of the ICC's jurisdiction back to July 1, 2002 as evidence that states can give the court retroactive jurisdiction. I don't agree that this is relevant precedent; Côte D'Ivoire was the territorial sovereign throughout the entire period, so its retroactive acceptance of jurisdiction raises none of the issues posed by a new state.]

Did Bibi Get the "Treatment Reserved for the President of Equatorial Guinea" from Obama? He Wishes.

The UK Telegraph brings news of a “fresh low in US-Israeli relations” after President Obama “snubbed” Israeli Prime Minister Binyamin Netanyahu during his recent visit to the White House.

The Telegraph breathlessly reports that Obama and his pals gave the Israeli delegation the full Mean Girls treatment: After Bibi refused to negotiate on a list of 13 demands from the Obama administration, the president ditched him and went upstairs to eat dinner with Michelle and their daughters. The White House also barred photographers from the meeting, and refused to issue a joint statement when it ended. Ooh, snap!

According to the Telegraph, Israeli Newspaper Maariv reported that “There is no humiliation exercise that the Americans did not try on the prime minister and his entourage,” and “Bibi received in the White House the treatment reserved for the president of Equatorial Guinea.”

Um, Maariv? This is kind of awkward, because we know you think that the “treatment reserved for the President of Equatorial Guinea” must be about as bad as it gets. But as it turns out, last time Equatorial Guinea’s President Obiang met with Obama, cameras were allowed:


“President Barack Obama and First Lady Michelle Obama pose for a photo during a reception at the Metropolitan Museum in New York with H.E. Teodoro Obiang Nguema Mbasogo, President of the Republic of Equatorial Guinea, and his wife, Mrs. Constancia Mangue de Obiang, Wednesday, Sept. 23, 2009.” (Official White House Photo by Lawrence Jackson) (via the White House Flickr Feed.)

Diplomacy: Ur Doing it Rong

According to the New York Times and the Associated Press, Israeli Prime Minister Ehud Olmert has just made a speech in which he claimed the following:

  1. That he “forced” U.S. Secretary of State Condoleezza Rice to abstain from voting on a U.N. resolution that she herself helped draft, because he felt that it “did not provide for the security of Israel.” (The resolution in question called for “an immediate, durable and fully respected cease-fire leading to the full withdrawal of Israeli forces from Gaza”)
  2. That he also he demanded that President Bush leave the podium in the midst of giving a speech, so that Olmert could tattle on Secretary Rice’s brazen attempt to commit to a fully respected cease-fire.
  3. That President Bush obeyed this command.
  4. That Bush then called Rice and told her to abstain from the vote.
  5. That Rice then did so.
  6. That Rice was “left pretty embarrassed” by the incident.

That’s just rude, sir. It’s bad enough to kick up rough over a completely inocuous U.N. resolution. But to then brag -in public- about humiliating the U.S. Secretary of State, in a way that also humiliates the President? Awfully poor form.

I know that Bush and his cabinet aren’t very popular right now, but guess what? There are people who still like them. (You might know them as “your strongest supporters.”) Way to kick sand in their faces, dude.

(The State Department denies that Rice was rebuked, and said she had always planned to abstain from the voting.)

In Which Hamas Attempts to Bowfinger Obama, Fails


Image via Bowfinger.com
It appears that Hamas has taken a page out of MEND‘s book, and is now trying its hand at Bowfinger diplomacy.

For those just tuning in, Bowfinger diplomacy is a strategy in which rebel groups claim fake ties to celebrity peacemaking figures in order to legitimize themselves. It’s named for the movie in which Steve Martin plays a failed producer who can’t land a big star for his film, so shoots it on the sly by sneaking up on the movie star and filming scenes without his knowledge. (More detailed explanation here.) MEND is the master of that strategy, having Bowfingered everyone from George Clooney to Barack Obama.

Now Hamas is giving Bowfinger diplomacy a try. They released a statement to the Arab newspaper Al Hayat, claiming to have met with Barack Obama’s top advisors before the election. Only problem? Never happened. Obama’s advisors immediately denied the meeting. Denis McDonough, a senior foreign policy advisor, told the Jerusalem Post that “the assertion is just plain false.” Ouch.

Memo to Hamas: Who did you think you were kidding here? After all, Obama fired a middle east policy advisor from his campaign for meeting with you guys in a past job. Why he would send his current advisors to meet with you several weeks later? What did they need advice about, good restaurants in Gaza?

Oh, and it’s also a bad idea to Bowfinger someone who you might need to have real meetings with later. Talk about awkward:

“Remember that time when we said we had meetings with you guys even though we didn’t? Such a funny mix-up. So, can we have Jerusalem?”

“No.”