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Why A 2014 Investigation Into War Crimes In Israel And Gaza Is Still Unfinished

ARI SHAPIRO, HOST:

Israel and Gaza are each accusing each other of war crimes. Israel is accused of using disproportionate force against Palestinians, Hamas of launching rockets at Israeli civilians. The International Criminal Court is already investigating both sides for the same accusations during the 2014 conflict. That investigation was only announced last March, nearly seven years after the alleged crimes were committed. To talk about why these investigations take so long and what impact they might have, Diane Orentlicher joins us now. She's a professor of international law at American University.

Good to have you here.

DIANE ORENTLICHER: It's great to be here. Thank you.

SHAPIRO: Broadly, when you look at ICC investigations beyond Israel and Gaza, is seven years to open an investigation pretty typical, or is that longer than usual?

ORENTLICHER: It's not unusual for the prosecutor to take a long time to open a formal investigation. I don't know whether I would call this typical, but there are some situations that the prosecutor has had her eye on even longer than this.

SHAPIRO: So one of the requirements for opening an investigation is that one or both of the states involved has to approve. Now, Israel does not recognize the ICC. In this case, did the prosecutor first have to determine whether Palestinian territories constitute a state?

ORENTLICHER: Yes, that's right. A state has to basically transfer the jurisdiction that it would have to prosecute certain crimes - has to transfer its own authority to the ICC in order for it to have jurisdiction. And Palestine did that, but there was a question whether it was a state that was capable of doing that.

SHAPIRO: Now, having reached that threshold for the 2014 conflict, does that mean the ICC might be much quicker to open an investigation of this 2021 conflict now that they've answered those questions?

ORENTLICHER: So the prosecutor has indicated that the investigation that she opened quite recently enables her to look at the very recent alleged war crimes as well.

SHAPIRO: Given that Israel and Hamas are accused now of doing basically the same things they were accused of doing in 2014, does that suggest that an ICC investigation is not actually a deterrent, that it really doesn't have much impact on how the parties conduct themselves?

ORENTLICHER: So that's really a good question, and it's the natural one to raise at this point. A number of experts have tried to look systematically at whether the ICC can deter atrocities, and a number of them have found that you have fewer acts of serious violence once the ICC is involved. The most prominent supporters of the ICC have made broader claims about how important it is to say in a very powerful way that certain crimes are just so atrocious, we can't stand by and not make it absolutely clear that breaches of fundamental norms of civilization won't be tolerated by the international community.

SHAPIRO: Do you think it would make a difference if the ICC operated on a faster timeline? I mean, its record of investigations, convictions is so sparse.

ORENTLICHER: Sure. Yeah, there is widespread agreement that it needs to move more quickly. And quite recently, the states that are parties to the court issued a report in late September that set forth 384 recommendations for actionable proposals that the ICC could implement to improve its delivery of justice. So that would absolutely make a difference. But I also think it's important to understand that one of the reasons the court has sometimes taken so long to even open an investigation is that the ICC is supposed to be a court of last resort. And the prosecutor has tried to use the pre-investigation period to encourage local governments to do their job in bringing perpetrators to account, and she's had some success doing that. So what looks like an intolerable delay sometimes is the cost of actually inspiring local governments to do a better job of bringing justice to victims of terrible atrocities.

SHAPIRO: That's Diane Orentlicher, a professor of international law at American University.

Thanks a lot.

ORENTLICHER: My pleasure. Transcript provided by NPR, Copyright NPR.