Document Type

Article

Disciplines

International Law

Abstract

The values of liberty, fairness and democracy underlie Western criminal law systems.' Each of these values challenges the International Criminal Court ("ICC") system, established under the Rome Statute of the International Criminal Court2 ("Rome Statute" or "Statute"). This article analyzes these challenges and shows that they can be properly addressed only by adopting a moral gravity requirement in determining the scope of international criminal prohibitions.

But how should we apply a requirement of moral gravity in international criminal law? How does such requirement bear on the prohibitions contained in the Rome Statute? This article takes up those questions by focusing on a particular practice that seems to be prohibited under the Rome Statute: the demolition of houses in an occupied territory as collective punishment. More specifically, this article addresses Israel's policy in the West Bank and the Gaza Strip ("Occupied Territories") of demolishing the homes of terrorists, often populated by innocent residents as well, as a response to terror attacks.

There are certain theories on the issue of house demolitions that this article does not address. For instance, Professor Alan Dershowitz defends Israel's house demolitions policy relying on a broad theory of complicity. Applying the criminal law notion of complicity, Dershowitz attributes personal guilt to all Palestinians who passively support terror attacks but do nothing to facilitate them.' Thus, "there is nothing morally wrong with holding such complicitors accountable, so long as the consequences imposed on them are proportional to their complicity. Consequence, like complicity, is a matter of degree, and it is the relationship between them that determines morality.

Rejecting this argument, George Fletcher suspects that the real notion underlying the demolition practice is one of collective guilt.' "The proponents of collective punishment assume that Palestinians are guilty as a collective for nurturing a culture that takes pride in suicide bombers."

uring a culture that takes pride in suicide bombers."6 This article, however, takes the arguments of the Israeli government at face value. Israel justifies its house demolitions practice as a necessary, effective, deterrent measure.7 This is the only argument addressed here. This article further assumes, for the sake of principled discussion, that Israel's factual assertions regarding the effectiveness of house demolitions as a deterrent measure are correct. Part II describes Israel's policy of demolishing houses in the Occupied Territories as a deterrent measure. I argue that this practice often represents a form of collective punishment, and is thus prohibited under Article 8(2)(a)(iv) of the Rome Statute, which proscribes "extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly,"' as a war crime ("Property Provision"). I then turn to examine the appropriateness of international criminal jurisdiction over conducts such as Israel's house demolitions practice. Part III argues that the Rome Statute's provisions concerning ICC jurisdiction and limitations on admissibility do not guarantee the application of a strict moral gravity requirement in international criminal law. Part IV advocates such requirement. I point to fairness, liberty and democracy considerations that require confining international criminal prohibitions to the enforcement of fundamental, self-evident moral norms. Part V presents guidelines for the application of the moral gravity requirement. Part VI applies those guidelines to Israel's house demolitions practice. I show that applying the Rome Statute's Property Provision to Israel's house demolitions practice would be contrary to the moral gravity requirement in international criminal law. I therefore conclude that the prohibition contained in the Property Provision should be narrowed to exclude conducts such as Israel's house demolitions practice. This analysis represents an effort to examine the limits of international criminal law. Its implications obviously extend far beyond the issue of house demolitions.

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