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Brief Encounter with Professor Ruth Lapidot
Ina Friedman
How does the ICC differ from the International Court of Justice in The Hague?
Lapidoth: The Internat-ional Court of Justice deals with civil claims by one state against another, while the ICC will deal only with individuals, and only for crimes committed after July 1. Proceedings can be initiated by any state that is party to the statute; the Security Council; and the tribunal�s prosecutor. No one enjoys immunity.
Which crimes are covered?
Genocide; crimes against humanity (which encompasses murder, extermination, enslavement, torture and deportation of populations -- though this applies only if they are committed as part of a widespread and systematic attack against a population); war crimes (including willful killing, torture and the taking of hostages); and aggression -- though here the court's jurisdiction has been postponed.
What are the penalties?
Imprisonment; never the death penalty.
Israel is not a party to the tribunal, since it has signed but not ratified the Rome Treaty. Why?
The problem for Israel is that, at Egypt's initiative, the list of war crimes in the statute includes "the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory." This is also found in the Fourth Geneva Convention, and the whole world interprets the clause to mean that settlements in the territories are illegal. But Israel argues that the intent of the clause in the Fourth Geneva Convention was to prevent a recurrence of what the Nazis did -- the forcible transfer of citizens of the occupying power into occupied territory and the expulsion of the indigenous population -- and should be interpreted only in this light.
Israel also faces a political, even moral, problem here. It was active in the preparation of the Rome Treaty precisely because of what Jews endured in World War II. We wanted to ensure that no one would enjoy impunity for such horrible acts. But now Israel is hesitant to ratify the statute for fear that it may be used against its own citizens due to the politicization of the court. We won't know whether this fear is valid until the judges are elected, the prosecutor is appointed, and we see how they function.
How menacing is the ICC to Israeli officials and military personnel?
You could say it looks very bad, because the ICC can try the citizen of a state not party to the Rome Treaty -- as long as the state in which the alleged crime occurred has signed and ratified the treaty. However, Palestine cannot submit a claim because it is not a sovereign state. Conceivably, the Security Council could do so on its behalf, though we would hope that the U.S. would use its veto power to prevent that. Syria might want to institute prosecution for the Israeli settlements built on the Golan Heights. But Syria is not a party to the Rome Treaty (Jordan is the only Arab state that has ratified it). And although there's a possibility that a non-member state can apply to the ICC if it accepts the court's jurisdiction in its case alone, this would work for Israel, as well. If Arab states start bringing claims against our citizens, we can bring claims against theirs.
So you don�t anticipate Israeli politicians and soldiers being arrested overseas for trial?
The possibility exists, but I hope it will not materialize. Even countries that have adopted universal jurisdiction for their courts -- such as Belgium, Canada, Spain and Germany -- have not exercised it against Israelis, except for the recent case (against Prime Minister Sharon and two others) in Belgium. Much depends on whether the new court allows itself to become politicized.
Israel
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