The writer is a member of the Canadian Parliament on leave from McGill University, where he is a professor of law, and an international human rights lawyer.

Fifty years ago, in the immediate aftermath of the "Judgment at Nuremberg" and the Genocide Convention, the UN General Assembly in 1950 codified the Nuremberg Principles, including the principle that individuals, even heads of state, are criminally responsible for the commission of war crimes and crimes against humanity. These "Nuremberg crimes" were deemed to be crimes against humankind itself, and those who commit them deemed hostis humanis generis, the enemies of humankind.

It is not surprising then, given the continuing and pervasive state of international criminality since that time, and the impunity accompanying it, that the idea and inspiration for establishing an International Criminal Court (ICC) has remained on the international agenda with greater or less visibility since the judgment at Nuremberg.

However, it took the globalized horror of the killing fields of the Nineties and the emergence of the unthinkable - ethnic cleansing - and the unspeakable - genocide - to give the ICC the moral imperative and sense of urgency it warrants.

The establishment of an ICC was an idea whose time had come, and indeed, was long overdue. So it was that in an international diplomatic conference in Rome on July 17, 1998, 120 states voted in favor of, while seven opposed, a treaty establishing the first permanent international tribunal with the capacity to prosecute individuals for the most egregious of international crimes: genocide, war crimes, and crimes against humanity.

The treaty will come into effect when 60 states have both signed and ratified it. Presently, some 125 states have signed and 25 have ratified it, and it is expected that the requisite number of ratifications will be achieved in the next 18 months.

Regrettably - and surprisingly to many - Israel was one of the seven countries to vote against the treaty and the establishment of the ICC. Indeed, the Jewish people had been among the first advocates of such a court, seeing it as the institutionalization of the Nuremberg legacy. Moreover, the Israeli Supreme Court, in the Eichmann case, was the first to invoke and apply the Genocide Convention, and to support the principle of universal jurisdiction to prosecute war criminals.

Unfortunately the treaty also contains a provision which defines as a war crime "the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies." This provision, which is anchored in a similar but narrower provision of the 1949 Geneva Conventions (without the words "directly or indirectly") would arguably characterize Israeli settlements in the occupied territories as not only "illegal" or "an obstacle to peace," but as a war crime, and render Israelis, from the prime minister down, indictable before the court.

As today is the last day in which countries can sign the treaty (after today, countries will have to both sign and ratify), the matter is up for decision today by the cabinet. Last week, after an initial consideration of the question, Prime Minister Ehud Barak decided against signature.

Indeed, one might ask, why should Israel support a treaty containing a provision that appears to criminalize the settlements? And why should Israel trust the good faith of the international community that such a treaty would not be used against it, when the UN Human Rights Commission recently condemned Israel for "war crimes and crimes against humanity" committed during the current intifada?

I WOULD, nonetheless, offer the following considerations in favor of Israel signing the treaty.

First, it should not be assumed - as many do - that Israeli nationals could not be indicted if Israel were not a state party to the treaty. Quite the contrary. Admittedly, one of the conditions for the court's exercise of jurisdiction is that the accused be a national of a state party. But a second, and alternate, basis for jurisdiction, is that the crime be committed on the territory of a state party.

Accordingly, even if Israel does not ratify the treaty, an indictment could always be entered against an Israeli national for a "war crime" allegedly committed on Syrian territory (settlements on the Golan), Lebanon (bombing a civilian target), or the prospective state of Palestine.

Second, even if there were no ICC Treaty - or Israel was not a state party to it - Israeli nationals, like those of any country, could still be indicted under the "Pinochet Doctrine," which makes former heads of state and other senior officials accountable for international crimes, based on the principle of universal jurisdiction.

Third, at a meeting of the preparatory commission of the ICC in June, 2000, held to define the elements of crimes, a footnote was inserted to the effect that the definition of transfer in the "occupied territories provision" would be that which is in accordance with international humanitarian law, i.e., without the "directly or indirectly" elasticity.

Fourth, given that an overwhelming number of states will sign - and many will ratify - the treaty, and that all major non- governmental human rights organizations are strongly supportive of it and even made it possible, Israel's non-signature will clearly be prejudicial to its standing in the "court of public opinion" and may be projected as a "presumption of guilt" rather than a "presumption of innocence."

Fifth, Israel could sign the treaty together with an interpretive declaration to the effect that its signature reflects, and represents, its historical commitment to the foundational principles of international humanitarian law and the Nuremberg legacy. However, should the treaty be politicized and malicious prosecutions be launched, Israel could declare that it would have no other choice but to withdraw its signature, while the very integrity of the court and international justice would be undermined.

Finally, Israel might subsequently agree to ratify the treaty, which would have its own inherent advantages, i.e., that as a member of the Assembly of State Parties, Israel could participate in the development of the ICC process, including the choice of prosecutor and composition of the court; that it could utilize to advantage "the complementarity principle" - a fundamental ICC jurisdictional principle - whereby the ICC will only exercise its jurisdiction if a state party is "unable or unwilling" to do so, such that the "first resort" under this principle to the highly respected Israeli judicial system would be determinative and dispositive; and that, as in the case of France, it could exercise the "opting out" provision from the court's jurisdiction over war crimes for a period of seven years.

In a word, Israeli apprehensions about the ICC Treaty are not without foundation. But these apprehensions could well be realized even if Israel does not sign the treaty, while Israel would lose the considerable advantages that would attend its signature.

Copyright The Palestine Post Limited Dec 31, 2000