The Tone-Deaf ICC Prosecutor

by Kevin Jon Heller Moreno-Ocampo has always had the reputation of being more politically savvy than legally savvy. Frankly, he seems completely politically tone-deaf to me. Witness his recent comments on the implications of a possible UN General Assembly decision to give Palestine "observer state" status: A few blocks away from the UN this week, the man at the centre of the controversy said if Palestine becomes a member state, or a lower-ranked non-member observer state, it could be eligible to pursue claims against Israel. "If the General Assembly says they are an observer state, in accordance with the all-state formula, this should allow them . . . to be part of the International Criminal Court," he told the Star. Moreno-Ocampo has scrutinized the issue of the Palestinians' claims for two years, since they filed a declaration giving jurisdiction to the court for acts committed on their territory. But there has not yet been a conclusion. "We have the declaration, and we have been analyzing if they are a state," he said. "Now the issue is before the UN, and whatever they decide, we will react to." Israel's former UN ambassador Dore Gold told the BBC that Palestinian President Mahmoud Abbas made the bid for statehood "to open a whole new door of going to the International Criminal Court." Israel opposes any move to hold it accountable in the court, saying it is a Palestinian attempt to delegitimize and isolate the Jewish state. Moreno-Ocampo's opinion that the court would be able to act if the Palestinians get observer-state status is significant because the bid for full UN membership is expected to fall short, which would leave them to ask the General Assembly to vote on including them as an observer state instead. I am completely in favor of the General Assembly granting the Palestinians observer-state status, and there is no question that such a decision would strengthen the legal case for the OTP recognizing the Palestinians' declaration accepting the ICC's jurisdiction. But I cannot imagine why Moreno-Ocampo chose to offer his opinion on that issue now – just as debate over the Palestinian's request for full membership in the UN is getting underway. After all, Israel and the U.S. have made clear that fear of an ICC investigation of the situation in Gaza is one of the primary reasons they oppose observer-state status, much less full membership, for the Palestinians. Neither Israel nor the U.S. has the ability to block a General Assembly decision to that effect. But they can certainly make that decision more difficult and costly for various states. So wouldn't it have made more sense for Moreno-Ocampo to say nothing until after the General Assembly resolved the Palestinian issue? By tipping his hand so overtly, all he's done is make the Palestinians' road to self-determination that much more difficult. June 2012 cannot come soon enough.

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