After Ole’s and Valentina’s interesting posts on some of the legal aspects of the ongoing conflict in Gaza I would like to address some points regarding an issue that has been briefly mentioned in those posts and in various other contributions on the same topic, e.g. by Eric Posner, namely the question of the establishment of an International Criminal Tribunal for Israel.
Perhaps a short remark at the outset: the establishment of an international tribunal that is supposed to deal with cases arising from a certain – more or less – contained conflict, certainly is a tool that looks good on the paper. It is suggested frequently by politicians (see the latest call for an international tribunal to deal with cases of piracy) because it swiftly and without effort gives the impression that the political branch is actively seeking solutions to a given tension. This is due to the common rationale that a court through its adjudicatory activities is applying the law (something that perhaps has been lacking before), solving conflicts, and thus serves as a preserver of justice and peace. Courts function as indicators that law and order has been re-established where formerly crimes and atrocities have ruled, so to speak. But this is not always easy to realize in practice. And especially in the case of the crisis in the Middle East, where even the smallest political consensus on a peaceful coexistence of the various parties seems to be lacking, the establishment of an international (ad hoc) tribunal is not really the first thing that comes to mind. But what if we, nevertheless, explore some of the issues that may become relevant when setting up an international tribunal.
Establishing an international tribunal may not necessarily ameliorate the conditions in which it is being established. In fact, it is even likely that the proper functioning of an (international) tribunal presupposes a functioning and relatively stable political and social surrounding. Only than can its decisions be appreciated and develop any kind of impression on individuals and their interaction. At the very least, those societies that are affected by the relevant court’s decisions must hold the potential of becoming rule-based and nonviolent societies. Moreover, creating a new criminal tribunal may even be counterproductive if the organ is not accepted by all fractions of parties to a previous conflict, and thus could be perceived as mere “victor’s justice”. But let’s put all these arguments aside for now and ask the question, how could an international criminal tribunal – and I assume for the present purpose that it is primarily a “criminal” tribunal that would be of interest in the case of the Middle East (although questions of compensation and property also might become relevant) – contribute to the establishment of peace?
(I) Rehabilitation of the victims – International courts could function as forums for the examination of events and for overcoming the traumas victims have suffered. But in order to accomplish this you don’t necessarily need a court or even a judicial organ. A stable social and political surrounding would provide various mechanisms for victims to deal with their experiences, without the focus on convicting a perpetrator. (II) Interrupting the circle of vengeance – Surely, an international court could defuse the desire for revanchism and vengeance through peaceful conflict resolution and providing an alternative mechanism for conflict resolution. Preconditions in this regard would be inter alia that a fair trial is assured, that the relevant court is independent & impartial, and that penalties are proportionate. (III) Contributing to disclose and clarify the real causes for conflict – Victims’ stories and objective investigation as means to reveal the true causes for international crimes. Here too, other organs such as e.g. truth and reconciliation commissions could do an equally good job because they do not concentrate on finding perpetrators, determining guilt, and establishing penalties. (IV) Promotion of conflict prevention.
One central question with regard to an International Criminal Tribunal for Israel is of course the question of the establishment. How could such an organ be created and by whom? As Ole already pointed out, it is certainly not advisable that the UN General Assembly establishes an Israeli War Crimes Tribunal. To mention one of the reasons for why the two existing ad hoc tribunals have been established by the Security Council acting under Chapter VII of the UN Charter, instead of by the General Assembly pursuant to Art. 22 UN Charter, is the binding force of such an establishment and the following necessity for States to co-operate with such an organ. Also, in the General Assembly there would not be any risk of a veto since the highest threshold, i.e. with regard to decisions on important questions, is a two-thirds majority of member States present and voting (cf. Art. 18 UN Charter). In other words, if we leave e.g. financial and political arguments aside for a while, it is more likely (although still highly improbable) that an Israeli War Crimes Tribunal would be established by the General Assembly than by the Security Council.
Finally, one smaller detail that might have an important political significance is the name of such a tribunal. Why call it a tribunal “for Israel” if it is intended to be an institution that is supposed to help establish the rule of international law in the region?
As my casuistic arguments above might have shown, there are numerous aspects that one would have to take into consideration. And considering the wide array of other legal issues that become relevant in the current Gaza crisis, it does not seem advisable to think of a new adjudicatory organ, the effect of which is highly uncertain (at best), even (or especially) when the lessons from the hitherto proliferation of international tribunals is taken into account.